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


                   FEDERAL COURTS DURING THE COVID-19
                PANDEMIC: BEST PRACTICES, OPPORTUNITIES
                    FOR INNOVATION, AND LESSONS FOR
                               THE FUTURE

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

                                HEARING

                               BEFORE THE

                 SUBCOMMITTEE ON COURTS, INTELLECTUAL 
                      PROPERTY, AND THE INTERNET

                                 OF THE

                       COMMITTEE ON THE JUDICIARY

                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED SIXTEENTH CONGRESS

                             SECOND SESSION

                               __________

                             JUNE 25, 2020

                               __________

                           Serial No. 116-82

                               __________

         Printed for the use of the Committee on the Judiciary
         
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]         


        Available via: http://judiciary.house.gov or govinfo.gov
        
                               __________

                    U.S. GOVERNMENT PUBLISHING OFFICE                    
42-431                     WASHINGTON : 2022                     
          
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                         COMMITTEE ON JUDICIARY

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

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

        PERRY APELBAUM, Majority Staff Director & Chief Counsel
               CHRISTOPHER HIXON, Minority Staff Director
                               
                               ------                                

             SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY,
                            AND THE INTERNET

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

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

                      JAMIE SIMPSON, Chief Counsel
                     BETSY FERGUSON, Senior Counsel
                            
                            
                            C O N T E N T S

                              ----------                              

                             June 25, 2020

                                                                   Page

                           OPENING STATEMENTS

The Honorable Henry C. ``Hank'' Johnson, Jr., Chair of the 
  Subcommittee on Courts, Intellectual Property, and the Internet 
  from the State of Georgia......................................    25
The Honorable Martha Roby, Ranking Member of the Subcommittee on 
  Courts, Intellectual Property, and the Internet from the State 
  of Alabama.....................................................    26

                               WITNESSES

The Honorable David G. Campbell, Chair, Senior United States 
  Judges for the District of Arizona
  Oral Testimony.................................................    28
  Prepared Statement.............................................    31
  Supplemental Statement.........................................    39
The Honorable Bridget M. McCormack, Chief Justice, Michigan 
  Supreme Court
  Oral Testimony.................................................    64
  Prepared Statement.............................................    67
The Honorable Jeremy Fogel, Executive Director, Berkeley Judicial 
  Institute, Berkeley School of Law, University of California
  Oral Testimony.................................................    71
  Prepared Statement.............................................    72
Ms. Melissa Wasser, Policy Analyst, Reporters Committee for 
  Freedom of the Press
  Oral Testimony.................................................    75
  Prepared Statement.............................................    77

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE RECORD

Items submitted by the Honorable Henry C. ``Hank'' Johnson, Jr., 
  Chair of the Subcommittee on Courts, Intellectual Property, and 
  the Internet from the State of Georgia for the record
  A statement from Bruce Stern, American Association for Justice.     4
  A survey entitled, ``Legal Practice in the COVID-19 Era Survey 
    Findings,'' Federal Bar Association..........................    13

 
                   FEDERAL COURTS DURING THE COVID-19
               PANDEMIC: BEST PRACTICES, OPPORTUNITIES 
                            FOR INNOVATION, AND
                         LESSONS FOR THE FUTURE

                              ----------                              


                        Thursday, June 25, 2020

                        House of Representatives

             Subcommittee on Courts, Intellectual Property,

                            and the Internet

                       Committee on the Judiciary

                             Washington, DC

    The Subcomittee met, pursuant to call, at 9:05 a.m., 2141 
Rayburn Building, Hon. Henry C. ``Hank'' Johnson [Chair of the 
Subcommittee] presiding.
    Present: Representatives Johnson of Georgia, Stanton, 
Correa, Roby, Chabot, Collins, Johnson of Louisiana, Biggs, and 
Cline.
    Staff Present: Madeline Strasser, Chief Clerk; Anthony 
Valdez, Staff Assistant; John Williams, Parliamentarian; Jamie 
Simpson, Chief Counsel; Betsy Ferguson, Minority Senior 
Counsel; Caroline Nabity, Minority Counsel; Kiley Bidelman, 
Minority Clerk.
    Mr. Johnson of Georgia. The Subcommittee will come to 
order. Without objection, the Chair is authorized to declare 
recesses of the Subcommittee at any time.
    Welcome to this morning's hearing on ``Federal courts 
During the COVID-19 Pandemic: Best Practices, Opportunities for 
Innovation, and Lessons for the Future.''
    Before we begin, I would like to remind Members that we 
have established an email address and a distribution list 
dedicated to circulating exhibits, motions, or other written 
materials that Members might want to offer as part of our 
hearing today.
    If you would like to submit materials, please send them to 
the email address that has been previously distributed to your 
office and we will circulate the materials to Members and staff 
as quickly as we can.
    I also ask unanimous consent that the following items be 
entered into the record: A letter to Chair Johnson and Ranking 
Member Roby from Bruce Stern, the President of the American 
Association for Justice, and the results of a study of a recent 
survey by the Federal Bar Association of its Members on legal 
practice in the COVID-19 era.
    Without objection, so admitted.
    [The information follows:]

   

                 MR. JOHNSON OF GEORGIA FOR THE RECORD

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

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    Mr. Johnson of Georgia. I will now recognize myself for an 
opening statement.
    Welcome to the subcommittee's hearing on the ``Federal 
courts During the COVID-19 Pandemic Best Practices, 
Opportunities for Innovation, and Lessons for the Future.''
    For more than 70 years, Congress has provided that, quote, 
``All courts of the United States shall be deemed to be always 
open,'' end quote. That congressional mandate and the deeper 
principles it embodies has been sorely tested by the pandemic 
sweeping across the country.
    The idea of open justice is fundamental in any 
constitutional democracy. The concept encompasses a range of 
meanings, but today I want to focus on three.
    First, open justice means that our courts must be open for 
business, able to not just receive complaints and motions but 
also to hear arguments, hold trials, and issue decisions 
without the undue delay that can rob any ruling of its value.
    Second, open justice means that our courts must be open to 
the public because justice made in the dark isn't really 
justice at all.
    Third, open justice means that our courts must be safe and 
accessible to all.
    Our judiciary is decentralized by design and inclined 
towards incrementalism. So it is to their credit that our 
Federal courts moved relatively quickly to maintain their 
operations and protect health and safety in the face of the 
coronavirus.
    Judges and court administrators had to make tough decisions 
that probably saved lives. They closed courthouses, postponed 
trials, and held hearings by phone and in video.
    One court even held the Federal Judiciary's first virtual 
bench trial. With their courtrooms closed, many judges opened 
their proceedings to the public through live video and audio.
    Even the Supreme Court, which has been committed to closing 
itself off from the public, allowed live audio broadcasts of 
its arguments.
    With four months of experience behind us and the reality 
that we are still in only the first wave of the virus, it has 
become clear that the courts and Congress need to do much more 
if we want the courts to be truly open during this pandemic and 
after.
    It is also clear that we can do more to insulate the 
judiciary against future emergencies, whether that is a second 
or third wave, or a future pandemic.
    There is an alarming backlog of motions and trials that, if 
not addressed, could effectively decide cases against parties 
who cannot afford to wait for a judgment.
    The judiciary's historical resistance to embracing 
available information technology options could force court 
personnel, litigants, and witnesses into unsafe courthouses to 
attend proceedings that could have been held remotely.
    The risk of infection could shut the public and the media 
out of live proceedings that could have--that could have been 
held remotely. The risk of infection could shut the public and 
the media out of live proceedings and the lack of publicity 
about alternatives could shut them out of remote proceedings.
    The Supreme Court might return to its practice of forcing 
people to wait in long lines to cycle through a tiny packed 
courtroom. These threats to open justice will force the 
judiciary to make some uncomfortable choices.
    There is a powerful desire to get back to normal, but the 
courts will put people at risk if they simply try to revert to 
how they operated before the pandemic.
    Instead, the judiciary should meet this crisis by exploring 
how to make the court more open, more effective, and safer than 
ever before, both during the pandemic and beyond.
    It can start by following the increasingly well-worn path 
marked by many innovative State, local, and Federal judges.
    The coronavirus has forced us all to ask what kind of 
government are we? What kind of government should we be? Most 
importantly, what kind of government will we be?
    Our Federal courts are no exception. I hope today's hearing 
will help us find answers that preserve justice, promote public 
confidence in the courts, and protect the Rule of law.
    It is now my pleasure to recognize the Ranking Member of 
the Subcommittee, the gentlewoman from Alabama, Ms. Roby, for 
her opening statement.
    Ms. Roby. I thank you, Mr. Chair.
    Good morning, and thank you to all of our witnesses for 
participating in today's hearing.
    I want to first express my deep condolences to all who have 
been impacted by the COVID-19 pandemic. Over 120,000 Americans 
have died from coronavirus and many more continue to be 
infected. I and my family, we are praying for the families and 
loved ones and those who have lost their lives, and for anyone 
who has been impacted by this terrible virus.
    Turning to today's hearing, I want to thank Chair Johnson 
for convening this hearing on a very timely and important topic 
and will say it is nice to be back in our Committee hearing 
room.
    The entire Federal Government including the judicial branch 
has had to react to health challenges posed by the deadly 
COVID-19 virus.
    In particular, the Federal Judiciary has had to close 
courthouses, halt jury trials, and suspend in-person 
proceedings, given social distancing guidelines and health 
concerns.
    We know that COVID-19 has not affected each state, city, or 
jurisdiction the same. As Federal, district, and appellate 
courts begin to consider how to safely reopen, we need to 
ensure the Federal Judiciary is prepared to assist courts 
across the country as they start planning how in-person 
proceedings will look like, moving ahead.
    I look forward today to hearing about the work the Judicial 
Conference and the Administrative Office of the U.S. Courts, 
have done to help and provide guidance to Federal courts during 
this challenging time.
    Both the Judicial Conference and the Administrative Office 
of the U.S. Courts play critical roles in supporting an 
efficient, effective, and productive Federal Judiciary.
    I also hope that today we have the opportunity to discuss 
how Congress can support the Administrative Office of Courts in 
their continuing response to the pandemic.
    I anticipate that some of our witnesses may decide on the 
use of permanent remote technology in the courtroom even after 
the country recovers from COVID-19.
    However, as I mentioned in my remarks last September at the 
subcommittee's hearing on judicial transparency, I have deep 
concerns about the use of cameras in the courtroom and the live 
broadcasts of court proceedings.
    As we consider the use of technology in the court, we need 
to ensure that the judiciary is fully prepared to utilize that 
technology and adequate safeguards need to be in place.
    We also need to remember that some courts and jurisdictions 
may not be readily equipped with the technological capabilities 
required to participate in remote judicial proceedings.
    For example, parts of my district in Alabama are rural and 
securing access to quality broadband can be a real challenge.
    So, while we discuss the reopening of the judicial system, 
we need to consider the best practices of how courthouses can 
safely reopen under proper social distancing guidelines so that 
the needed proceedings in our courts can continue.
    I look forward to hearing from all of our witnesses today 
and I thank you for your time to testify this morning.
    Thank you, Mr. Chair, and I yield back.
    Mr. Johnson of Georgia. Thank you.
    We will now introduce our witnesses. To begin, yield to the 
gentleman from Arizona, Mr. Stanton, who will introduce Judge 
Campbell.
    Mr. Stanton. Thank you very much, Mr. Chair.
    It is my honor to introduce Judge David Campbell from the 
District of Arizona. Judge Campbell has been a United States 
District court judge for the District of Arizona since 2003 and 
a Senior Judge since 2018.
    He currently Chairs of the Committee on Rules of Practice 
and Procedure for the U.S. Federal courts, which oversees the 
work of five advisory committees on the Federal Rules of Civil, 
Criminal, Bankruptcy, and Appellate Procedure, and the Federal 
Rules of Evidence.
    He served as Chair of the Advisory Committee on the Federal 
Rules of Civil Procedure from 2011 to 2015 and as a Member of 
the Committee from 2005 to 2011.
    Judge Campbell is a Member of the American Law Institute, a 
Fellow of the American Bar Foundation, and a Board Member of 
the Judicial College of Arizona, and I am proud to have a 
fellow Arizonan here today to represent our courts in front of 
Congress.
    Welcome, Judge Campbell.
    Mr. Johnson of Georgia. Thank you, Mr. Stanton. Welcome, 
Judge Campbell.
    Next, we will go to Chief Justice Bridget McCormack. She 
joined the Michigan Supreme Court in 2013 and became Chief 
Justice in 2019.
    Before her election to the court, she served as a clinical 
professor of law, associate dean clinical affairs, and co-
director of the Innocence Clinic at the University of Michigan 
Law School.
    Prior to joining the University of Michigan Law School 
faculty, she was a Cover Fellow at Yale Law School. Before 
that, she worked as a staff attorney with the Office of the 
Appellate Defender and as a Senior Trial Attorney with the 
Criminal Defense Division of the Legal Aid Society in New York 
City.
    Chief Justice McCormack received her BA from Trinity 
College and her JD from New York University School of Law.
    Welcome, Judge McCormack.
    Judge Jeremy Fogel became the first Executive Director of 
the Berkeley Judicial Institute in 2018. Prior to his 
appointment at Berkeley, he served as director of the Federal 
Judicial Center as a United States District Judge for the 
Northern District of California, and as a judge for the Santa 
Clara County Superior and Municipal Courts.
    He received his BA from Stanford University and his JD from 
Harvard Law School. Judge Fogel has received many accolades, 
including the President's Award for outstanding service to the 
California judiciary from the California Judges Association and 
recognition from the Santa Clara County Bar Association for 
exemplifying the highest standards of professionalism in the 
judiciary.
    Welcome, Judge Fogel.
    Last but not least, we have Melissa Wasser, or Ms. Wasser. 
I am sorry.
    Melissa Wasser is a Policy Analyst at the Reporters 
Committee for Freedom of the Press. Prior to joining the 
Reporters Committee she worked as a law Fellow for the American 
Constitution Society and legal extern to the Ohio House 
Democratic Caucus in the Ohio House of Representatives.
    She is a former Human Rights Campaign McCleary Law Fellow 
and a recipient of the Michael E. Moritz Leadership Award in 
Law.
    Ms. Wasser received her BA from Youngstown State University 
and JD and MA in Public Policy and Management from the Ohio 
State University. Welcome.
    Before proceeding with testimony, I hereby remind the 
witnesses that all of your written and oral statements made to 
the Subcommittee in connection with this hearing are subject to 
18 USC 1001.
    Please note that your written statements will be offered 
into the record in its entirety. I ask that you summarize your 
testimony in five minutes, and to help you stay within that 
time there is a timing light that I am not sure is visible to 
you. If it is not visible to you, I will tap the gavel when you 
have 30 seconds left and when you have 10 seconds left I will 
tap it a little louder.
    Judge Campbell, you may begin.

                 TESTIMONY OF DAVID G. CAMPBELL

    Judge Campbell. Chair Johnson, Ranking Member Roby, and 
Members of the Subcommittee, good morning and thank you for 
inviting the judiciary to testify on how the Federal courts are 
responding to the COVID-19 pandemic.
    I appear today on behalf of the Judicial Conference of the 
United States. Like other institutions, the operations of the 
Federal Judiciary have been seriously disrupted by the 
pandemic.
    I am pleased to report, however, that judges in District, 
Bankruptcy, and Appellate Courts continue to hold hearings, 
issue decisions, and resolve cases.
    Jury trials and grand jury proceedings have been postponed 
in most districts. Other proceedings continue to the greatest 
extent possible through video and telephone conferencing.
    In February, the Administrative Office of the U.S. Courts 
established a COVID-19 task force to monitor the impact of the 
virus on court operations and provide guidance and resources to 
courts on emerging issues.
    A COVID-19 website was established on the judiciary's 
Intranet, which addresses pandemic-related information and 
resources on a wide range of relevant topics.
    Circuit and District courts used these resources to meet 
their local needs.
    On April 24th, the AO published recovery guidelines for 
phased reopening of the courts. These include gating criteria 
and a real-time dashboard courts can use to obtain information 
about conditions in their own communities.
    The AO also established an Internet hub on its website to 
keep the public informed about court operations, and some 
20,000 court employees are teleworking through the court's 
virtual private network.
    For the courts, reconvening of jury trials is a priority. 
Individual courts are developing jury procedures for their 
unique situations that seek to minimize health risks for all 
participants.
    On June 14th, a subgroup of the AO's task force provided a 
detailed and helpful report on conducting jury trials and 
convening grand juries during the pandemic. Many Federal courts 
are also communicating with their State court counterparts to 
exchange relevant information and best practices.
    It is difficult to predict the extent of the case backlog 
that will result from the pandemic. Some delays will result 
from the fact that jury trials have been postponed and will 
require priority attention when they can resume.
    Of course, Bankruptcy Courts will likely see a surge in 
filings that will affect their caseloads.
    We very much appreciate the $7.5 million in supplemental 
appropriations you provided in the CARES Act to address 
immediate technology needs and increased costs in our probation 
and pretrial services programs.
    On April 28th, the Judicial Conference submitted a 
supplemental funding request for $36.6 million to address 
urgent needs such as enhanced cleaning of court facilities, 
health screening at courthouse entrances, technology 
infrastructure, costs associated with supervision of offenders 
released from prison early, and security costs.
    Attachment One to my written statement provides additional 
details on this request.
    The Judicial Conference also identified 17 legislative 
proposals to address immediate COVID-19 impacts and post-
pandemic operations. We ask that you please consider these 
proposals carefully. They are summarized in Attachment Two to 
my written statement.
    Thank you for working with us to craft provisions in the 
CARES Act that made it possible to hold video and audio 
proceedings temporarily during the pandemic for many pretrial 
events and criminal cases.
    These provisions have worked well during the emergency and 
have allowed courts to continue processing criminal cases.
    The CARES Act also directs the Judicial Conference and the 
Supreme Court to consider whether various sets of Rules should 
be amended to include emergency procedures. That work is 
already underway through the Rules Committees of the Federal 
courts.
    Mr. Chair, thank you for the opportunity to address these 
issues. I will do my best to respond to any questions.
    [The statement of Judge Campbell follows:]
    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
    
    Chair Johnson, Ranking Member Roby, and Members of the 
Subcommittee:

    Good morning, I am David Campbell, Senior United States 
District Judge for the District of Arizona. Thank you for 
inviting the Judiciary to testify on how the Federal courts are 
responding to the COVID-19 pandemic. I appear today on behalf 
of the Judicial Conference of the United States, the national 
policy-making body for the Federal courts. I currently serve as 
Chair of the Judicial Conference Committee on Rules of Practice 
and Procedure for the Federal courts, which studies the 
operation and effect of the Federal rules of practice and 
procedure and oversees the work of the five Advisory Committees 
on the Federal Rules of Civil, Criminal, Bankruptcy, and 
Appellate Procedure, and on the Federal Rules of Evidence. I 
previously served as Chair of the Advisory Committee on Civil 
Rules from 2011 to 2015, and as a Member of the Advisory 
Committee from 2005 to 2011. I am personally familiar with the 
practices and procedures used in Federal courts and the process 
by which they are revised and updated.
    Additional information in this statement has been provided 
by knowledgeable persons within the Administrative Office of 
the United States Courts (AO).
    Let me begin by thanking the Members of this Subcommittee 
as well as the Full Committee for your longstanding support of 
the Federal Judiciary. Your commitment to the Federal Court 
system, as demonstrated by the resources and funding Congress 
has provided, is very much appreciated by the judges, their 
staff, and support personnel. Today's hearing is another 
demonstration of that commitment, and we appreciate the 
opportunity to discuss how the Judiciary is addressing the 
challenges resulting from the current nationwide emergency.
    Like other institutions throughout the United States and 
the world, the operations of the Federal Judiciary have been 
impacted by the COVID-19 pandemic. I am pleased to report, 
however, that the Federal courts continue to operate in all 
categories of cases despite unprecedented challenges. Jury 
trials and grand jury proceedings have been postponed in most 
districts, but civil, criminal, bankruptcy, and appellate 
proceedings continue to the greatest extent practicable through 
video and telephone conferencing technology. Judiciary 
personnel nationwide are teleworking, and the AO continues to 
provide support to the courts.
    I will now discuss each of the topics in the title of 
today's hearing, namely, the Federal Judiciary's efforts to 
institute best practices in response to the pandemic, 
opportunities for innovation identified as a result of those 
efforts, and lessons for the future, with a particular focus on 
civil proceedings.

                       I. BEST PRACTICES

    The primary goal of the Judiciary, of course, is to fulfill 
its constitutional mission of providing justice in individual 
cases and maintaining the rule of law. Through a combination of 
advanced planning, use of technology, and the dedication of 
thousands of judicial personnel, the Federal Judiciary 
responded rapidly to the pandemic and enabled courts to 
continue operating while ensuring the health and safety of the 
public and court personnel. By necessity, this has been and 
continues to be implemented through local, court-specific 
approaches, reflecting the disparate nature and evolving impact 
of the pandemic.

                      A. Advanced Planning

    Prior to the current pandemic, the Federal Judiciary had in 
place an emergency preparedness program that greatly 
facilitated the Judiciary's rapid response to this situation. 
Pandemic planning and direction have been a component of the 
Federal Judiciary's Emergency Management Program since 2005--
part of its Continuity of Operations Plans (COOP). Because of 
this planning, the Federal Judiciary was able to begin 
responding to the pandemic in January of this year.
    Courts have been employing COOP plans for many years, but 
in 2005 a Pandemic Annex was provided to them by the AO. The 
Annex includes templates and instructional materials developed 
by the AO to help courts navigate a pandemic. These materials 
assisted each court unit in making informed decisions about how 
to continue proceedings during the COVID-19 pandemic.

            B. Federal Judiciary COVID-19 Task Force

    In January 2020, the Federal Judiciary began preparations 
for the COVID-19 pandemic through AO communications with the 
courts. On February 18, 2020, the AO established the Federal 
Judiciary COVID-19 Task Force (Task Force). The Task Force 
consists of Chief District Judges and Court Unit Executives; a 
Federal Defender; staff from AO program offices; and 
representatives from the General Services Administration, the 
U.S. Marshals Service, the Executive Office for U.S. Attorneys, 
and the Federal Protective Service. The Task Force monitors and 
assesses the impact of the virus on court operations nationally 
and provides advice on emerging issues presented by the 
pandemic. It serves as a point of contact for, and coordinates 
communication with, Courts, Court Units, Federal Defenders, and 
AO offices. It can request, obtain, and disseminate information 
and guidance relating to the coronavirus and its impact on the 
Judiciary in an expeditious manner. The Task Force meets weekly 
and its leadership meets daily. A representative of the Task 
Force also serves on the American Bar Association's COVID-19 
Task Force to ensure coordination with the legal community. \1\
---------------------------------------------------------------------------
    \1\ In addition to the Task Force, the Judicial Conference's 
Committee on Federal-State Jurisdiction serves as the conduit for 
communication on matters of mutual concern between the Federal 
Judiciary and State courts and their support organizations such as the 
National Center for State Courts, the Conference of Chief Justices, and 
the State Justice Institute. The Committee has four State Chief 
Justices as Members (currently, the Chief Justices of Ohio, Minnesota, 
Indiana and Florida), and the President of the National Center for 
State Courts attends the meetings of the Committee as an invited guest. 
Federal judges from this Committee attend the Conference of Chief 
Justices meetings, and Committee Staff coordinate with National Center 
Staff on issues of mutual concern.
---------------------------------------------------------------------------
    As more fully described below, the Task Force coordinates 
an extensive COVID-19 resource website on the Judiciary's 
Intranet. The website includes current infonnation on the 
spread of the COVID-19 virus, links to key health information, 
answers to frequently asked questions (FAQs), a collection of 
court-implemented best practices, additional guidance, 
templates, and resources. In addition, the Task Force has 
coordinated meetings with the Bureau of Prisons, U.S. Marshals 
Service, and Judiciary Officials.

        C. Guidance and Related Informational Materials

    To date, the AO has assisted in drafting, staffing, and 
issuing of more than 429 guidance and policy FAQs on issues 
such as bankruptcy administration, budgets, conferences, court 
interpreting, court reporting, facilities and security, finance 
and internal control, financial disclosure, health, human 
resources and benefits, information technology, jury duty, 
naturalization ceremonies, probation and pretrial services, 
procurement, telework, and travel. Sixty-five memos on a 
variety of topics have been issued to courts since the pandemic 
began. Districts and circuits use these resources to assess and 
meet their localized needs and operations. Many of these 
resources have been made publicly available on the Judiciary's 
www.uscourts.gov website. For example, guidance on the 
following topics have been made available to the public:

     Court operations during the pandemic; \2\
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    \2\ https://www.uscourts.gov/news/2020/04/08/courts-deliver-
justice-virtually-amid-coronavirus-outbreak.
---------------------------------------------------------------------------
     Teleconferencing during the pandemic; \3\
---------------------------------------------------------------------------
    \3\ https://www.uscourts.gov/news/2020/03/31/judiciary-authorizes-
videoaudio-access-during-covid-19-pandemic.
---------------------------------------------------------------------------
     Court orders and updates on court operations; \4\
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    \4\ https://www.uscourts.gov/about-Federal-courts/court-website-
links/court-order-and-updates-during-covid19-pandemic.
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     Media access to Federal courts; \5\
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    \5\ https://www.uscourts.gov/news/2020/04/03/judiciary-provides-
public-media-access-electronic-court-proceedings.
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     Suspension of jury trials during the pandemic; \6\
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    \6\ https://www.uscourts.gov/news/2020/03/26/courts-suspend-jury-
trial-response-coronavirus.
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     Restarting jury trials; \7\ and
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    \7\ https://www.uscourts.gov/news/2020/06/10/judiciary-issues-
report-restarting-jury-trials.
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     Reopening guidelines. \8\
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    \8\ https://www.uscourts.gov/news/2020/04/27/courts-begin-consider-
guidelines-reopening.
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             D. Support Services Provided by the AO

    Throughout the COVID-19 pandemic, the AO has provided 
support to courts on continuity of operations, including 
guidance on technology, human resources, and budget issues. It 
provides updates from the Centers for Disease Control and 
Prevention, and coordinated with the Federal Emergency 
Management Agency to obtain over one million cloth reusable 
masks which were shipped to court units across the country for 
use by court employees and visitors to courthouses and 
judiciary offices.
    On April 24, 2020, the AO published the ``Federal Judiciary 
COVID-19 Recovery Guidelines.'' The Guidelines include three 
gating criteria for courts to consider before proceeding to a 
phased re-opening (four phases of reconstitution are 
contemplated): (1) The number of COVID-19 confirmed or 
suspected cases in the court facility within a 14-day period; 
(2) a sustained downward trend of cumulative daily COVID-19 
cases over a 14-day period in the community; and (3) the 
rescission of local orders restricting movement or requiring 
shelter in-place. The AO has created national dashboards for 
each of these criteria, displayed at the county level, to 
enable courts to make these determinations on a real-time 
basis.
    To keep the public informed about court operations 
throughout the United States, on March 12, 2020 the AO 
established an Internet hub on its public website, 
uscourts.gov. This hub provides near-daily updates on the 
operational status of individual courts, including closures, 
restrictions on accessibility, and the availability of court 
proceedings through remote access. Courts have provided similar 
information on their individual websites.

                II. OPPORTUNITIES FOR INNOVATION

    Much like Congress--through its adoption of H. Res. 965 to 
permit Members and Witnesses to participate remotely in 
hearings--the Federal Judiciary has used technology to ensure 
continuity of operations while protecting the health and safety 
of the public and judiciary personnel. Telephone and video 
technology has been used in civil cases to continue court 
proceedings and facilitate public and media access. There are 
challenges, including concerns about the security of media 
platforms, an inability to conduct jury trials, and some 
scheduling delays.

                         A. Technology

    Recognizing that the pandemic would require courts to close 
courthouses or restrict access, the Judicial Conference acted 
on March 29, 2020, to temporarily authorize the use of video 
and teleconferencing technologies under certain circumstances. 
\9\ Courts are now using a variety of platforms to provide 
audio and video access to civil proceedings. Judicial staff and 
AO support personnel have worked quickly resolve technical and 
logistical issues as they arise, including, for example, 
expanding network capacity to handle bandwidth strains when 
multiple judges are holding hearings simultaneously, obtaining 
licenses for certain platforms, and ensuring that courts have 
necessary equipment.
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    \9\ Judicial Conference policy generally prohibits the broadcasting 
of proceedings in Federal Trial Courts (JCUS-SEP 94, pp. 46-47; Guide 
to Judiciary Policy, Vol. 10, Ch. 4). The Executive Committee of the 
Judicial Conference, however, approved a temporary exception to the 
policy to allow a judge to authorize the use of teleconference 
technology to provide the public and the media audio access to court 
proceedings while public access to Federal courthouses generally, or 
with respect to a particular district, is restricted due to health and 
safety concerns during the Coronavirus Disease (COVID-19) pandemic. 
This authorization will expire upon a finding by the Judicial 
Conference that the emergency conditions due to the emergency declared 
by the President with respect to COVID-19 are no longer materially 
affecting the functioning of the Federal courts generally or a 
particular district.
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    The AO has taken steps to strengthen the Federal 
Judiciary's Infomiation Technology (IT) infrastructure to 
accommodate telework across the Judiciary. The AO is monitoring 
connectivity closely and steadily seeing approximately 20,000 
simultaneous connections through its virtual private network 
(VPN) services. Although some problems have been reported, the 
systems are performing well given the unprecedented number of 
remote workers.
    The AO has also increased capacity. This includes the 
doubling of internet bandwidth and significant increases in 
telephone audio bridges and video conferencing licenses, 
including more than 2,000 additional audio conference numbers. 
The increases provided a level of assurance that court 
proceedings were accessible to those with an interest in 
attending.
    The courts are conscious of their obligation to ensure 
public and media access to civil proceedings. That access 
normally is afforded by open courtrooms--a form of access 
currently limited or eliminated by local measures required to 
protect the health and safety of litigants, attorneys, 
witnesses, members of the public, the press, and court 
employees. Fortunately, teleconference technology has allowed 
the public and the media to listen to civil proceedings they 
are unable to attend in person.

                         B. Challenges

    The Federal Judiciary has encountered various challenges in 
its effort to continue to operate during the COVID-19 pandemic. 
I will highlight three: The security of media platforms, the 
conduct of jury trials, and potential caseload backlogs.
    The AO has been closely monitoring the security and privacy 
of media platforms utilized by the Judiciary. As you know, the 
surge in videoconferencing has made it a target for hackers. 
The AO provides recommendations and support to courts using 
videoconferencing to conduct Judiciary business, enabling them 
to secure their hearings.
    The use of videoconferencing has been particularly 
challenging in court hearings with detained defendants and in 
facilitating attorney/client communications, both with Federal 
Detainees in local jails and defendants in the Bureau of 
Prisons (BOP). Local jails and BOP facilities have not always 
had videoconference software or software compatible with courts 
or defender offices. Delays in attorney/client communication 
because of a lack of videoconference capacity is something we 
continue to address--additional funding would help to alleviate 
some of these issues and assure that our Sixth Amendment 
obligations are upheld.
    The COVID-19 pandemic has significantly impacted jury 
trials and caseload backlogs.
    As noted above, jury trials--which require numerous 
potential jurors to assemble at a courthouse for jury selection 
and require selected jurors to attend trials for multiple 
days--present serious health risks to jurors and to all other 
trial participants during a time of publicly-transmitted 
infections. As a result, jury trials have been largely stopped 
during the pandemic. Restrictions on court access and the 
limitations of technology have also forced judges and court 
staff to prioritize other matters such as essential proceedings 
in criminal cases. We appreciate that Congress has expressed 
specific concern for public defenders and panel attorneys 
during the pandemic--the defense team does face greater COVID-
19 risks than some other stakeholders.
    Reconvening jury trials is a judicial priority. Individual 
courts are developing protocols tailored to meet the conditions 
in their district's courthouses that will minimize health and 
safety risks for all participants in the jury selection process 
and the conduct of juries. Courts recognize that jurors must be 
given reasonable assurance of their safety before participating 
in the jury process. Jurors must be comfortable during a trial 
and be able to focus on the evidence, arguments, and court 
instructions, and not the risk of a COVID-19 infection. 
Defenders and panel attorneys need adequate time and space to 
communicate with their incarcerated clients in a 
constitutionally effective way without fear of contracting the 
virus. There is no one-size-fits-all approach. Each court is 
assessing information from local health authorities, the AO, 
and the Centers for Disease Control and Prevention in 
developing its plan to resume jury trials.
    The AO is providing guidance on this issue. On June 14, 
2020, a Jury Subgroup of the AO's COVID-19 Task Force issued a 
report titled ``Conducting Jury Trials and Convening Grand 
Juries During the Pandemic.'' The report identifies issues and 
provides detailed recommendations for courts to consider as 
they reconvene grand and petit juries.\10\ Both the main COVID-
19 Task Force and the Jury Subgroup continue to monitor 
developments concerning the pandemic' s impact on the courts' 
ability to conduct jury trials.
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    \10\ https://www.uscourts.gov/sites/default/files/
combined_jury_trial_post_covid_doc_6 .10.20.pdf.
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    Despite these disruptions to normal court operations, 
judges in every court type--district, bankruptcy, and 
appellate--continue to hold hearings, issue decisions, and 
resolve cases on their dockets. They continue to review filings 
and to conduct hearings with parties and counsel using 
teleconference or videoconference technology.
    It is difficult at this stage to predict when courts will 
be able to resume normal operations and, thus, the extent of 
any backlog that will result from the pandemic. Our hope is 
that the Judiciary's ability to continue operations during this 
period will minimize delays to case progress and mitigate any 
backlog as much as possible.

                      C. Bankruptcy Issues

    The COVID-19 pandemic has in some respects had a chilling 
effect on the commencement of new cases, particularly consumer 
bankruptcy case filings. While business bankruptcy filings in 
May 2020 increased by 48 percent compared to the same period 
last year, consumer filings were significantly lower.
    Whether, as predicted by many experts, there will be a 
massive surge in bankruptcy filings depends on the pandemic's 
impact on the unemployment rate and the timeliness of the 
nation's economic recovery. Americans have lost more than twice 
as many jobs (16,800,000) from March to mid-April than during 
the entirety of the Great Recession, and it took 24 months for 
the latter losses to peak. Moreover, the unemployment numbers 
do not reflect the likely higher number of individuals who have 
had their work hours reduced, with corresponding reductions in 
income.
    The impact of the pandemic on small businesses is likely to 
be severe, notwithstanding the Federal stimulus and relief 
programs. Many small businesses lack the kind of banking 
relationships that ease the application process, and many will 
be reluctant to assume more debt, even if the debt may be 
forgivable.
    Yet, another factor is consumer debt, which is at its 
highest absolute level in 75 years and at its historically 
highest level relative to personal income. Because interest 
rates have been and continue to be historically low, however, 
household debt service as a percentage of disposable income one 
of the leading bankruptcy indicators--is at its historical low. 
While interest rates are not anticipated to rise in the 
foreseeable future, the impact of the pandemic on household 
income virtually guarantees that household debt service will 
consume a much larger share of consumers' budgets, ultimately 
leading to an increase in bankruptcy filings.
    All of this suggests that bankruptcy filings may increase 
very significantly across the country.\11\ Significant 
increases in bankruptcy filings will place an even greater 
strain on staffing resources across the Judiciary and may 
require a request for supplemental funding to address backlogs 
and delays.
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    \11\  Historically, there has always been a lag between economic 
difficulties and surges in bankruptcy filings. Typically, it takes 
average consumers about six to 18 months to file for bankruptcy after 
recognizing that they are in trouble.
---------------------------------------------------------------------------
    Earlier this year, the Chair of the House Judiciary 
Committee along with other Members of Congress asked the 
Judicial Conference to issue rules or guidance directing 
bankruptcy courts to adopt modified practices and procedures 
for electronic signatures, to permit remote appearances for 
section 341 meetings and other hearings, and to waive all fees 
associated with remote appearances.\12\
---------------------------------------------------------------------------
    \12\  A detailed explanation of the Conference's rulemaking efforts 
in response to the COVID-19 pandemic appears in section III of this 
statement.
---------------------------------------------------------------------------
    As AO Director James Duff explained in his response, this 
request was referred to the appropriate Judicial Conference 
committees for further consideration and action, as 
appropriate. In addition, Director Duff reported that many 
bankruptcy courts have entered general orders and revised 
procedures on a variety of topics, including courthouse 
closures and clerk's office operations, section 341 meetings of 
creditors, deadlines and time periods in pending cases, 
electronic signature requirements, access to telephonic and 
video technology for conducting hearings, and the 
implementation of changes to bankruptcy statutes in recent 
legislation, including the Coronavirus Aid, Relief, and 
Economic Security Act (CARES Act), Public Law, No. 116-136 
(2020) and the Small Business Reorganization Act of 2019, 
Public Law, No. 116-54 (2019). These orders are compiled 
centrally and updated regularly on uscourts.gov.
    As Director Duff noted, nearly every bankruptcy court in 
the country has entered orders or provided guidance suspending 
or modifying ``wet signature'' requirements to allow for 
contactless signing and submission of documents during the 
crisis. Each court continues to evaluate its individual 
circumstances, and those of the states and communities in which 
they serve, and will continue to issue revised guidance to 
ensure that the bankruptcy system operates safely and 
efficiently.
    Although the Judicial Conference is responsible for 
prescribing fees in bankruptcy cases pursuant to 28 U.S.C. 
1930(b), in addition to the filing fees to commence a 
bankruptcy case established by section 1930(a), the Conference 
has not imposed any fees on parties who wish to appear in 
bankruptcy proceedings by telephone or video conference. Many 
bankruptcy courts do, however, use third parties such as Court 
Solutions, Court Call, or similar vendors to provide critical 
network and conferencing technologies for remote hearings. 
These vendors set their own fees, and have procedures for 
waiving fees so indigent litigants can participate in remote 
hearings free of charge. Courts are working to ensure that no 
one is denied the right to be heard when appearing remotely 
during the pandemic, and the AO has encouraged courts to offer 
technologies that are accessible to all.

     D. Federal Judiciary Supplemental Funding Request and

                     Legislative Proposals

    In recognition of the unprecedented demands imposed on the 
Federal Judiciary by the COVID-19 pandemic, the Judicial 
Conference submitted a supplemental funding request and package 
of legislative proposals to Congress on April 28, 2020. Among 
the most serious challenges faced by the Federal Judiciary is 
the need for funds to respond to the COVID-19 pandemic. The 
supplemental funding request seeks $36.6 million in 
appropriations.
    The Federal Judiciary very much appreciates the $7.5 
million in supplemental appropriations Congress provided in the 
CARES Act to address immediate information technology needs and 
increased testing and treatment costs in our probation and 
pretrial services program. After our request for that funding, 
we worked with courts and Federal defender organizations 
nationwide to identify supplemental appropriations needs 
associated with COVID-19 pandemic prevention, preparedness, and 
response. The $36.6 million will address urgent needs such as 
enhanced cleaning of court facilities, health screening at 
courthouse entrances, information technology hardware and 
infrastructure associated with expanded telework and video 
conferencing, costs associated with probation and pretrial 
supervision of offenders released from prison early under the 
First Step Act and defendants on pretrial release, and 
security-related costs.
    Enclosure 1 provides additional details of this request: 
Courts' Salaries and Expenses Account ($25.0 million), Defender 
Services ($9.4 million), and Court Security ($2.2 million). We 
note that overall requirements for the courts' salaries and 
expenses total $52.5 million, however we have identified $27.5 
million in available balances as a partial offset, resulting in 
a net supplemental appropriations request of $25.0 million for 
this account.
    The Judicial Conference has also identified 17 legislative 
proposals to address immediate COVID-19 impacts and post-
pandemic operations. The Conference has requested that these 
provisions be included in the next supplemental appropriations 
bill or similar COVID-19 response legislation.
    Enclosure 2 provides a detailed list of these proposals and 
an explanation of why they are urgently needed to assist the 
Federal Judiciary' s ongoing efforts to respond to the COVID-19 
national emergency. All of these proposals have been approved 
by the Judicial Conference and draft legislative text is 
provided for each. The underlying objective behind every 
proposal is to ensure that the Federal Judiciary continues to 
meet its constitutional mandate while protecting the health and 
safety of court personnel, litigants, and the public. Of 
particular, relevance to this Subcommittee are proposals to 
ensure adequate judicial resources by converting temporary 
judgeships to permanent status and requesting a prudent number 
of new judgeships to meet anticipated caseload increases.
    The AO also wishes to highlight a proposal that addresses a 
growing leave-management issue, as exacerbated by the COVID-19 
national emergency, and which corrects a fundamental disparity 
between the treatment of certain senior court unit executives 
and their counterparts in the executive and legislative 
branches. As you can understand, many judicial branch Senior 
Executives have been required to undertake extraordinary and 
extended efforts, without taking any annual leave, to ensure 
the Federal Judiciary continues to function during the COVID-19 
pandemic. It is highly unlikely that these employees will be 
able to take time off now or in the next several months. We 
have submitted a proposal, which is contained in the bipartisan 
H.R. 5735--the ``Judicial Branch Senior Executive Leave 
Efficiency and Modernization Act of 2020''--that would extend 
the authority to carryover up to 720 hours of annual leave to a 
defined class of Senior Court Executives. Currently, these 
court executives may carryover only 240 hours of annual leave, 
unlike most comparable senior level executives in the executive 
and legislative branches who are allowed up to 720 hours of 
carryover. The proposal was introduced on January 30, 2020 by 
Representative Jamie Raskin and Subcommittee Ranking Member 
Martha Roby, for which we are very grateful.
    The Judicial Branch's 30,000 dedicated professionals--like 
public and private sector workers everywhere--continue to 
perform their duties admirably during this period of great 
uncertainty. As Congress looks to address the COVID-19 related 
needs of Federal agencies, State and local governments, 
businesses, and individuals, we ask that you consider the 
supplemental funding and legislative items included in this 
request to ensure the Judicial Branch has the resources needed 
to respond and recover from this pandemic.

                  III. LESSONS FOR THE FUTURE

    With respect to lessons for the future, I will focus on the 
Judicial Conference's rulemaking efforts in response to the 
COVID-19 pandemic and future national emergencies. When the 
COVID-19 pandemic was declared a national emergency and the 
normal operations of government and business were disrupted 
throughout the country, the impact on the Federal courts was 
significant. Our justice system has long been based on in-
person proceedings where intereste1 parties not only observe 
but participate in the hearings and decisions that affect their 
lives. This is particularly critical in criminal cases, where 
the Constitution guarantees the defendant's right to be present 
in the courtroom at all important steps of his or her case, to 
confront witnesses who testify against the defendant, to be 
represented by counsel with whom the defendant can communicate 
confidentially, and to have the charges against him or her 
decided by a jury of their peers who have been selected with 
the defendant's participation. Suddenly, this time-honored 
system of in-person proceedings presented serious health risks 
to all participants and had to be discontinued while the nation 
sought to control the spread of the virus. The courts were 
required, on short notice, to create a nationally available and 
secure infrastructure that would allow them to continue 
operations remotely through the virtual participation of 
parties, their lawyers, witnesses, the public, and the press. 
This required not only technical innovations and adjustments, 
but also changes to our rules and procedures. These changes had 
to address immediately needs without damaging our carefully 
crafted system of justice.
    Congress was responsive to these needs, and worked with us 
in crafting provisions for the CARES Act that made video and 
audio proceedings available during the pandemic for many 
pretrial events in criminal cases. Section 15002 of the Act 
permits Federal courts, with the consent of the defendant, to 
hold initial appearances, preliminary hearings, detention 
hearings, changes of plea, and even sentencings by video 
conference, or by telephone conferences if video conference is 
not reasonably available. This authorization is temporary, and 
will expire when the pandemic ends. To possibly avoid the need 
for urgent legislation in future emergencies, the CARES Act 
directs the Judicial Conference and Supreme Court to consider 
whether the various sets of rules should be amended to include 
emergency procedures. That work is already under way through 
the rules committees of the Federal courts. The Rules Enabling 
Act establishes the procedures for amending the Federal Rules 
of Civil, Criminal, Appellate, and Bankruptcy Procedure and the 
Federal Rules of Evidence. There are six rules committees that 
implement these procedures, including one Advisory Committee 
for each of the five sets of rules and the Committee on Rules 
of Practice and Procedure (also known as the Standing 
Committee) which oversees the work of the advisory committees.
    Proposed amendments to a particular set of rules are 
studied carefully by the Advisory Committee responsible for 
those rules, often through a Subcommittee and through empirical 
research when warranted. The proposed amendments are then 
evaluated in public meetings by the Full Advisory Committee 
whose membership is comprised of judges, lawyers, law 
professors, and government representatives. If the amendments 
seem justified and appropriate, they are published nationally 
for a six-month public comment period and are addressed in 
public hearings held by the Advisory Committee. To become 
effective, the amendments must be finally approved by the 
relevant Advisory Committee, the Standing Committee, the 
Judicial Conference of the United States, and the Supreme 
Court. The proposed amendments are then presented to Congress 
for six months before becoming effective, during which time 
Congress can act to reject or amend the proposals. This process 
is designed to be careful and thorough, to obtain input from 
all interested parties, and to produce balanced and fully-
informed decisions.
    In response your direction in the CARES Act, the Rules 
Committees have started considering possible amendments to the 
Federal Rules of Civil, Criminal, Appellate, and Bankruptcy 
Procedure and the Federal Rules of Evidence. The committees 
began by soliciting public comments during the month of May 
from lawyers, judges, parties, and the public on challenges 
encountered during the COVID-19 pandemic in State and Federal 
courts, and on solutions developed to deal with those 
challenges. The committees specifically sought to learn about 
problems that could not be addressed through the existing rules 
or where the rules themselves interfered with practical 
solutions. The deadline for submitting comments was June 1, 
2020. Many comments were received and are posted on the 
Judiciary's website (https://www.uscourts.gov/rules-policies/
proposed-amendments-published-pubIic-comment/invitation-
comment-emergency-rulemaking).
    Comments regarding the civil rules span more than 150 
pages. They include suggestions for expediting the service of 
process to begin a case and the service of papers during the 
case, the use of remote technology for case management and 
other hearings, the adjustment of deadlines for completing 
pretrial tasks, procedures for taking depositions remotely, and 
procedures for conducting trials, both to the court and before 
juries, in ways that are safe for all participants, including 
the use of remote technology.
    Each of the five advisory committees has established a 
subcommittee to review possible emergency procedures. Those 
subcommittees have started their work. As Chair of the Standing 
Committee, I have asked the Advisory Committees to develop 
proposed emergency-procedure amendments for consideration at 
their fall 2020 meetings. These proposals will also be 
addressed at the January meeting of the Standing Committee. The 
schedule then calls for the Advisory Committees to refine their 
proposals into publication-ready versions that can be addressed 
at their Spring 2021 meetings and reviewed by the Standing 
Committee next June. If the advisory and Standing Committees 
conclude that proposed amendments may be warranted, the 
proposals will be published for public comment in August 2021. 
Under the Rules Enabling Act procedures, any amendments 
produced by this process would take effect in December 2023 if 
Congress took no contrary action.
    This schedule may seem slow to those not familiar with 
Federal court rulemaking, but the Rules Enabling Act is 
designed to be deliberative, inclusive, and careful, as it 
should be for procedures that so significantly affect the 
rights of our citizens. It is important to keep in mind that 
these amendments, if they are adopted, will address future 
emergencies--they are not being pursued as a means for solving 
the current challenges presented by the COVID-19 pandemic.
    Mr. Chair, thank you again for the opportunity to discuss 
how the Judiciary is addressing the COVID-19 pandemic. I am 
happy to respond to your questions.

                                                        Enclosure 1
                                               Supplemental Funding

                           Judiciary

       Emergency Supplemental Request for COVID-19 Impact

Courts of Appeals, District courts, and Other Judicial Services 
                     Salaries and Expenses

    Legislative Language:
    For an additional amount for ``Salaries and Expenses'', 
$25,000,000, to prevent, prepare for, and respond to 
coronavirus, domestically or internationally: Provided, That 
such amount is designated by the Congress as being for an 
emergency requirement pursuant to section 25l(b)(2)(A)(i) of 
the Balanced Budget and Emergency Deficit Control Act of 1985.
    Description of Request:
    The Judiciary requests $25.0 million in net additional 
emergency supplemental appropriations in the courts' Salaries 
and Expenses account to address COVID-19 pandemic impacts in 
Appellate, District, and Bankruptcy Courts, and in probation 
and pretrial services offices. To identify these additional 
requirements, the Administrative Office received input from 
courts and probation and pretrial services offices nationwide 
on additional COVID-19 funding needs. After analyzing those 
requests, the Administrative Office has identified additional 
COVID-19 requirements totaling $52.5 million, partially offset 
by $27.5 million of available balances, resulting in a Net 
Supplemental Appropriations request of $25.0 million, to 
address the following emergent needs:
    --Enhanced Cleaning. $15.1 million is for enhanced cleaning 
of courthouses and court facilities. GSA provides regular 
cleaning of court facilities in accordance with tenant 
occupancy agreements but will only cover the cost of enhanced 
cleaning when there is a confirmed or suspected COVID-19 event 
and then only the area(s) accessed by the infected person(s). 
The Judiciary requires funding for enhanced cleaning of all 
court facilities nationwide to ensure the health and safety of 
Judiciary personnel, litigants, and the public. Enhanced 
cleaning would begin prior to re-occupancy of court facilities 
and be repeated as exposure incidents occur.
    --Health Screening at Courthouse Entrances. $15.0 million 
is for health screening at courthouse entrances utilizing the 
contract vehicle established by GSA for this purpose. Screening 
would be provided for 8 weeks.
    --IT Infrastructure Costs. $11.2 million is for hardware, 
software, licenses, and contract services to support the 
Judiciary's National IT infrastructure to address increased 
demand due to expanded telework and videoconferencing, as well 
as costs associated with continuing to support current IT 
system hosting environments due to pandemic-related delays in 
migrating to cloud hosting.
    --Telework and Videoconferencing Equipment. $7.8 million is 
for laptops, printers, and peripherals to enable court and 
probation and pretrial services personnel to be fully telework 
capable, and for videoconferencing equipment in courts and 
detention facilities to facilitate holding criminal proceedings 
via electronic versus in-person means.
    --Probation and Pretrial Services Supervision Cost. $1.6 
million is for increased costs associated with supervision of 
offenders released from prison and defendants on pretrial 
release, including mental health and drug testing and 
treatment, location monitoring, and Second Chance Act related 
expenses such as temporary housing for offenders/defendants.
    --Other Costs. $1.8 million is for miscellaneous equipment 
and supplies.

    As identified above, $25.0 million in additional 
supplemental appropriations, combined with $27.5 million in 
available Judiciary balances, would enable the Judiciary to 
fund these COVID-19 emergency requirements totaling $52.5 
million.

                           Judiciary

       Emergency Supplemental Request for COVID-19 Impact

Courts of Appeals, District courts, and Other Judicial Services

                       Defender Services

    Legislative Language:
    For an additional amount for ``Defender Services'', 
$9,400,000, to prevent, prepare for, and respond to 
coronavirus, domestically or internationally: Provided, that 
such amount is designated by the Congress as being for an 
emergency requirement pursuant to section 251(b)(2)(A)(i) of 
the Balanced Budget and Emergency Deficit Control Act of 1985.
    Description of Request:
    The Judiciary requests $9.4 million in additional emergency 
supplemental appropriations in the Defender Services account to 
address COVID-19 pandemic impacts in Federal defender 
organizations, which provide legal representation and other 
services to persons who are financially unable to obtain them 
in criminal and related matters in Federal court. To identify 
these additional requirements, the Administrative Office 
received input from Federal defender organizations nationwide 
on additional COVID-19 funding needs. After analyzing those 
requests, the Administrative Office has identified additional 
COVID-19 requirements totaling $9.4 million to address the 
following emergency needs:
    --IT Equipment and Infrastructure Upgrades. $7.9 million is 
for hardware, software, and contract services to enable Federal 
defender organization personnel to be fully telework capable, 
to support the Federal Defender National IT infrastructure to 
address increased demand due to expanded telework and 
videoconferencing, and for telecommunications upgrades to 
enable remote management of Federal Defender Organization phone 
systems.
    --Enhanced Cleaning. $1.5 million is for enhanced cleaning 
of Federal defender organizations' office space. GSA provides 
regular cleaning of Federal public defender offices in 
accordance with tenant occupancy agreements but will only cover 
the cost of enhanced cleaning when there is a confirmed or 
suspected COVID-19 event and then only the area(s) accessed by 
the infected person(s). The Judiciary requires funding for 
enhanced cleaning of all Federal Public Defender offices and 
grant-funded Community Defender offices to ensure the health 
and safety of Federal Defender organization personnel and their 
clients.

                           Judiciary

       Emergency Supplemental Request for COVID-19 Impact

Courts of Appeals, District courts, and Other Judicial Services

                         Court Security

    Legislative Language:
    For an additional amount for ``Court Security'', 
$2,200,000, to prevent, prepare for, and respond to 
coronavirus, domestically or internationally: Provided, That 
such amount is designated by the Congress as being for an 
emergency requirement pursuant to section 251(b)(2)(A)(i) of 
the Balanced Budget and Emergency Deficit Control Act of 1985.
    Description of Request:
    The Judiciary requests $2.2 million in emergency 
supplemental appropriations in the Court Security account to 
address security related COVID-19 pandemic impacts in the 
Federal courts. The funding will address the following needs:
    --Remote Security. $1.8 million is for software and 
equipment that will enable court staff to renew security 
certificates for Judiciary Personal Identity Verification-
Interoperable (PIV-I) cards remotely. This software and 
equipment will allow court staff currently teleworking to reset 
their security pins for digital signatures due to pin 
expiration or for other reasons without having to risk health 
and safety by physically going to the office.
    --Personal Protective Equipment. $0.4 million is to 
purchase personal protective equipment (gloves, masks, hand 
sanitizer, disinfecting wipes, etc.) for court security 
officers.

                                                        Enclosure 2
                                             Legislative Provisions

          Probation Resources on Higher-Risk Offenders

    Description: Allow the courts to terminate the supervised 
release term of an inmate who is no longer a threat and would 
not benefit from continued supervision. Inmates who have been 
compassionately released elderly home confinement program or 
prerelease custody or supervised release for risk and needs 
assessment, would not need to wait for the statutorily required 
completion of one year.
    Justification: As more inmates are released during the 
COVID-19 pandemic, placing an increased burden on court 
probation services, this legislative proposal would allow 
courts to terminate the period of supervised release of an 
offender who does not require intensive probation supervision 
prior to the current minimum of one year. This proposal would 
relieve probation officers of some of their unnecessary 
workload, allowing them to focus their limited resources where 
most needed. Legislative and policy developments, such as the 
First Step Act, the CARES Act, and the Attorney General's 
directives to the BOP, are resulting in even more of these 
cases burdening Probation Officers and costing taxpayer money 
which is unnecessary for many compassionate, elderly, and other 
release cases. An extended period of supervision in the 
community is generally unnecessary to ensure public safety and 
may even, in some cases, be counterproductive.
    Application: Section 3583(e)(l) of title 18 currently 
specifies that early termination of supervision may occur only 
after one year when warranted by the conduct of the defendant 
released and the interest of justice. With an increasing number 
of persons being released from incarceration early and spending 
an extended period of time on prerelease confinement as a 
result of recently enacted laws, including persons under 
compassionate release or who have served a period of prerelease 
custody under 34 U.S.C. 6054I(g) (elderly home confinement 
program), 18 U.S.C. 3624(c) (prerelease custody), or 18 U.S.C. 
3624(g) (prerelease custody or supervised release for risk and 
needs assessment system participant), the one-year waiting 
period may be too long for the best interest of the defendant, 
public safety, and the Administration of the criminal justice 
system. These offenders include many elderly and terminally ill 
persons who, independently of their own conduct, may be 
physically incapacitated, dying, or aged to the point that they 
are no longer a risk to the community and cannot meaningfully 
engage in the supervision process. In addition, the requirement 
is sometimes redundant because probation officers would be 
providing supervision and assistance to persons on supervised 
release who have already received such services during the 
period of home confinement. Relieving the responsibility of 
supervision in these cases would alleviate workload demands on 
probation officers and allow them to focus on higher priority 
cases.

Proposed Legislative Language:

SEC._ ALLOWING EARLY TERMINATION OF SUPERVISED RELEASE

    Section 3583(e)(1) of title 18, United States Code, is 
amended by inserting after ``the interest of justice'' the 
following:

        ``except that in the case of a defendant released from 
        imprisonment under sections 3582(c)(l), 3624(c), or 3624(g) of 
        that title or under section 60541(g) of title 34, United States 
        Code, terminate a term of supervised release and discharge the 
        defendant at any time, pursuant to the provisions of the 
        Federal Rules of Criminal Procedure relating to the 
        modification of supervised release, if it is satisfied that 
        such action is in.the interest of justice.''

 Keeping Non-Dangerous Defendants Out of Prison Prior to Trial

    Description: Reduce unnecessary pretrial detention of 
certain low-risk defendants charged with drug trafficking 
offenses by: (1) Limiting the application of the presumption of 
detention to defendants whose criminal history suggests that 
they pose a higher risk of failing to appear for court 
proceedings or that they may be a danger to the community; and 
(2) removing the presumption from other low-risk defendants.
    Justification: The COVID-19 pandemic has created dire 
circumstances in many Federal prisons, including those in which 
the Attorney General has declared an emergency. This proposal 
would help by allowing some defendants, who would ordinarily be 
required to be detained, to be placed under community 
supervision while awaiting trial. Efforts are being made at the 
Bureau of Prisons, pursuant to the Attorney General's 
directives, to release as many prisoners as possible to home 
confinement under the compassionate release program and to take 
the virus into account when making pre-trial release 
recommendations. Congress has also authorized additional 
compassionate releases in the CARES Act.
    Application: This provision reduces unnecessary pretrial 
detention of certain low-risk defendants charged with drug 
trafficking offenses by limiting the application of the 
presumption of detention to defendants whose criminal history 
suggests that they pose a higher risk of failing to appear for 
court proceedings or that they may be a danger to the 
community. Section 3142(e) of title 18 creates a presumption 
that certain defendants should be detained pending trial 
because a court cannot craft conditions of community 
supervision that would reasonably assure both the safety of the 
community and the defendant's appearance at court proceedings. 
The statute identifies several categories of defendants to whom 
this presumption applies, including those charged with specific 
drug trafficking offenses, and places the burden on a defendant 
to rebut the presumption for detention. In keeping with its 
support of evidence-based supervision practices, the 
Administrative Office of the U.S. Courts conducted a study 
analyzing data collected from a ten-year period. The study 
reveals that a sizeable segment of low-risk defendants falls 
into the category of drug traffickers subject to the 
presumption of detention. The study concluded that these 
defendants are detained at a high rate, even when their 
criminal histories and other applicable risk factors indicate 
that they pose a low risk of either reoffending or absconding 
while on pretrial release, and arguably should be released for 
pretrial supervision.
    Legal, policy, and budgetary factors--including the 
presumption of innocence and the relative costs of 
incarceration versus pretrial supervision--support reducing 
unnecessary pretrial detention. Therefore, the Judicial 
Conference endorsed limiting the application of the presumption 
of detention to defendants who meet these particular criteria, 
which would enable judges to make pretrial release decisions 
for low-risk defendants on a case-by-case basis. No defendant 
would be automatically released into the community if this 
proposal were enacted.

Proposed Legislative Language:

SEC._ REDUCING UNNECESSARY PRETRIAL DETENTION OF LOW-RISK DEFENDANTS

    Section 3142(e)(3)(A) of title 18, United States Code, is 
amended by inserting the following before the semicolon:

        ``and such person has previously been convicted of two or more 
        offenses described in subsection (f)(l) of this section, or two 
        or more State or local offenses that would have been offenses 
        described in subsection (f)(1) of this section if a 
        circumstance giving rise to Federal jurisdiction had existed, 
        or a combination of such offenses.''

   Compassionate Release Requests in District courts Before 
 Administrative Exhaustion by Reducing Unnecessary Electronic 
                           Monitoring

    Description: To allow filing compassionate release motions 
directly to District court without 30-day exhaustion of 
administrative remedies if waiting would cause irreparable harn 
to inmates during the National Emergency declared by the 
President under the National Emergencies Act (50 U.S.C. 1601 et 
seq.) with respect to COVID-19 and ending 30 days after the 
National Emergency terminates.
    Justification: District courts are severely constrained by 
the statute's Administrative Exhaustion Provision, especially 
in the midst of the COVID-19 pandemic. The 30-day lapse 
requirement in particular has prevented District courts from 
timely reviewing the petitions of vulnerable inmates who claim 
serious and irreparable harm to their health. According to 
reports from defenders working with Bureau of Prison (BOP) 
facilities across the country, there have been significant 
delays in BOP's response to requests for compassionate release. 
These delays assume that the requests can even be made. For 
example, inmates in transit often do not have a warden to whom 
they can submit a compassionate release request. Likewise, 
inmates in a number of jurisdictions have reported wardens or 
case managers refusing to even accept such requests, rendering 
the Administrative Exhaustion Process practically unavailable. 
Inmates at the BOP Federal Correctional Complex in Oakdale, 
Louisiana (F.C.C. Oakdale) have reported that their 
compassionate release requests have been returned to them 
unanswered. Attorney General William Barr named F.C.C. Oakdale 
as one of three BOP institutions that needed to focus on 
releasing vulnerable inmates because of the acute, deadly, and 
widespread COVID-19 outbreak. The first BOP inmate COVID-
related death sadly occurred at F.C.C. Oakdale. The Office of 
the Warden at Taft Correctional Institution in Taft, California 
went so far as to issue an official memo stating that 
administrative requests would not be answered and that ``no 
further requests would be addressed.''
    Application: Amend 18 U.S.C. 3582 to allow a defendant, 
once he or she has filed a request for compassionate release 
relief with the BOP, to file a motion for compassionate release 
directly in the District court before 30 days have lapsed if 
the exhaustion of administrative remedies would be futile or 
the 30-day lapse would cause serious harm to the defendant's 
health due to the COVID-19 pandemic. This legislation would be 
effective during the national emergency declared by the 
President under the National Emergencies Act (50 U.S.C. 1601 et 
seq.) with respect to COVID-19 and end 30 days after the 
National Emergency terminates.

Proposed Legislative Language:

SEC._ COMPASSIONATE RELEASE REQUESTS BEFORE ADMINISTRATIVE EXHAUSTION

    Subsection (c)(1)(A) of section 3582 of title 18, United 
States Code, is amended as follows:

        The court, upon motion of the Director of the Bureau of 
        Prisons, or upon motion of the defendant after the defendant 
        has fully exhausted all administrative rights to appeal a 
        failure of the Bureau of Prisons to bring a motion on the 
        defendant's behalf or the lapse of 30 days from the receipt of 
        such a request by the warden of the defendant's facility, 
        whichever is earlier, or, effective during the National 
        Emergency declared by the President under the National 
        Emergencies Act (50 U.S.C. 1601 et seq.) with respect to COVID-
        19 and end 30 days after the National Emergency terminates, 
        upon motion by the defendant submitted to the court upon a 
        showing that administrative exhaustion would be futile or that 
        the 30-day lapse would cause serious harm to the defendant's 
        health, may reduce the term of imprisonment (and may impose a 
        term of probation or supervised release with or without 
        conditions that does not exceed the unserved portion of the 
        original term of imprisonment), after considering the factors 
        set forth in section 3553(a) to the extent that they are 
        applicable, if it finds that--

       Focusing Scarce Electronic Monitoring Resources on

                     Higher Risk Offenders

    Description: Allow district judges to waive the electronic 
monitoring condition required for pretrial release in certain 
cases when a more restrictive condition of confinement and 
monitoring is imposed on an offender, so that scarce monitoring 
equipment and probation officer resources can be applied where 
most needed.
    Justification: This provision would lessen the extreme 
pressures being faced by probation offices, especially the 
electronic location monitoring provision, caused by the COVID-
19 pandemic emergency.
    Application: This provision allows district judges to waive 
the electronic monitoring condition required for pretrial 
release in certain cases when a more restrictive condition is 
imposed on an offender thus allowing monitoring equipment and 
probation officer time to focus on where it is needed more. As 
part of the Adam Walsh Child Protection and Safety Act of 2006 
(Pub. L., No. 109-248), section 3142(c)(l)(B) of title 18, was 
amended to require the court to impose electronic monitoring as 
a condition of pretrial release in any case that involves a 
minor victim under various title 18 offenses or a failure to 
register offenses under 18 U.S.C. 2250. The condition is 
required, however, even if the court imposes another, more 
restrictive condition such as residing in a halfway house or 
participating in a residential treatment program. The Adam 
Walsh Act was enacted, among other things, ``[to] protect 
children from sexual exploitation and violent crime, to prevent 
child abuse and child pornography, [and] to promote Internet 
safety.'' Elimination of the requirement to impose an 
electronic monitoring condition in cases where the defendant is 
confined and monitored in a secure residential setting would 
not jeopardize these goals. Moreover, installing the electronic 
monitoring equipment in halfway houses and treatment facilities 
carries unnecessary costs consisting of equipment rental, 
monitoring time, and labor.

Proposed Legislative Language:

SEC._ EFFICIENT USE OF ELECTRONIC MONITORING CONDITIONS

    The first undesignated paragraph of section 3142(c)(1)(B) 
of title 18, United States Code, is amended by adding the 
following after the reference to (viii) in (xiv):

        ``except that the electronic monitoring condition may be waived 
        if the judicial officer determines that a more restrictive 
        condition is necessary to ensure the appearance of the person 
        as required or to ensure the safety of any other person and the 
        community.''

 Focusing Pretrial Officer Resources on Higher Risk Defendants 
       by Eliminating Mandatory Reports That Have No Use

    Description: Authorizes a District court to direct that a 
pretrial services bail report need not be prepared in certain 
cases where the report would not be useful in the court's 
determination of release or detention because the defendant is 
already in custody or has a detainer.
    Justification: This legislative proposal would help reduce 
workload burdens on probation and pretrial services offices 
caused by the COVID-19 pandemic emergency, and allow pretrial 
services to be deployed where more needed.
    Application: This proposal authorizes a District court to 
direct that a pretrial services bail report not be prepared in 
certain cases where the report would not be useful in the 
court's determination of release or detention. Section 3154(1) 
of title 18 directs officers to prepare bail reports on each 
person charged with an offense, ``except that a District court 
may direct that information not be collected, verified, or 
reported under this paragraph on individuals charged with class 
A misdemeanors as defined in section 3559(a)(6) of [Title 
18].'' This exception does not apply to felony offenses, even 
though certain defendants appearing before the courts have 
little or no chance of being released pending trial. For 
example, defendants who are already serving sentences in 
Federal, State, or local custody on other charges would not be 
eligible for pretrial release, nor would most defendants who 
are illegal aliens subject to an immigration detainer.
    This amendment to section 3154(1) would give the court 
discretion to waive the preparation of a pretrial services 
report in cases where the report would have little or no 
bearing on the court's release decision, thereby conserving the 
resources of the probation or pretrial services office. 
Specifically, the court could waive the bail report requirement 
if the defendant is subject to an ICE detainer or if the 
defendant is already in Federal, State, or local custody in 
connection with a previous conviction.

Proposed Legislative Language:

SEC._ WAIVER OPTION FOR UNNECESSARY BAIL REPORTS

    Section 3154(1) of title 18, United States Code, is amended 
by inserting before the end of the sentence:

        ``individuals described in section 3142(d)(l)(B) of this title, 
        or individuals who are already in Federal, State, or local 
        custody in connection with a previous conviction.''

   Focusing Probation Officer Resources Where Most Needed by 
             Eliminating Duplicative Notifications

    Description: Eliminate the duplicate notification 
requirement for victims to reduce the informational burden on 
victims and focus Probation Officer resources where most 
needed.
    Justification: This legislative proposal would help reduce 
workload burdens on probation and pretrial services offices 
caused by the COVID-19 pandemic emergency.
    Application: This proposal streamlines victim notification 
requirements to reduce the burden on victims and increase 
governmental efficiency. As part of the Mandatory Victims 
Restitution Act of 1996, Probation Officers are required by 18 
U.S.C. 3664(d)(2) to provide the victims of an offense with 
notice of the defendant's conviction, the sentence date, and 
the victim's opportunity to submit an impact statement. The 
officer is also required to provide the victim with an 
affidavit form to submit a claim for restitution. In a similar 
fashion, the Crime Victims' Rights Act directs the ``officers 
and employees of the Department of Justice and other 
departments and agencies of the United States engaged in the 
detection, investigation, or prosecution of crime [to] make 
their best efforts to see that crime victims are notified of, 
and accorded, the rights described in [the Act].'' As a result 
of these two provisions, it is not uncommon for probation 
officers to contact victims to provide notice and seek a 
statement after employees of an executive branch agency have 
already done so. This duplication of effort is wasteful, and 
sometimes confuses or upsets victims, who may already be 
overwhelmed by the criminal justice system. Amending section 
3664(d)(2) to eliminate the current duplication of efforts in 
cases with identifiable victims will conserve resources and 
provide victims with a single point of contact. Because the 
executive branch already has an obligation under section 
3771(c)(1) and would most likely have contact with such victims 
long before sentencing, it makes sense to eliminate the 
redundant duties assigned to probation officers. In the event 
the executive branch agencies failed to contact a victim, the 
Probation Officer would then provide the notice.

Proposed Legislative Language:

SEC._ STREAMLINING VICTIM NOTIFICATION PROVISIONS

    Section 3664(d)(2) of title 18, United States Code, is 
amended by inserting the following undesignated paragraph after 
section 3664(d)(2)((B):

        ``The required notice and provision of an affidavit form in 
        foregoing subparagraphs (A) and (B) may be excused if a person 
        identified in section 3771(c)(1) has already provided notice 
        and an affidavit form to the victim.''

Maximizing Use of Probation Resources on Higher Risk Offenders 
        by Clarifying Obligations for Prerelease Custody

    Description: To maximize the use of probation resources by 
hannonizing the standard for the three circumstances under 
which the probation system is authorized to supervise inmates 
in the custody of the Bureau of Prisons (BOP) who have been 
placed on prerelease custody to be ``to the extent 
practicable.''
    Justification: The differing language for all three 
provisions creates inconsistent requirements for U.S. 
probation's involvement in assisting inmates on prelease 
custody. Amending the more compulsory language of 18 U.S.C. 
3624(c) and 34 U.S.C. 60541(g) to track the more permissive 
language of 18 U.S.C. 3624(g) would clarify and harmonize the 
various obligations of the probation system to assist inmates 
on prelease custody. More importantly, the probation system 
does not always have the resources to supervise prelease 
inmates. The lack of resources is even more of an issue under 
the expanded release authorities of the First Step Act and in 
response to the COVID-19 pandemic. Additionally, any 
arrangement to supervise prerelease inmates should be jointly 
agreed to by the BOP and the probation system.
    Application: There are three different statutory provisions 
that discuss the obligation of the probation system to assist 
inmates on prerelease custody: 18 U.S.C. 3624(c) and (g), and 
34 U.S.C. 60541(g). Under the three provisions, Probation 
Officers are authorized to supervise inmates in the custody of 
the BOP who have been placed on prerelease custody. However, 
all three provisions set forth different degrees to which 
officer assistance is authorized. If an individual is released 
under 18 U.S.C. 3624(c), then the U.S. probation system must, 
``to the extent practicable,'' offer assistance to the 
individual during prerelease custody. In comparison, if an 
individual is released under 18 U.S.C. 3624(g), then the BOP 
must, ``to the greatest extent practicable,'' enter into an 
agreement with the U.S. probation system to supervise the 
individual, and the probation system must ``to the greatest 
extent practicable'' offer assistance to any prisoner not under 
its supervisions during prerelease custody. If an individual is 
released under the elderly and family reunification for certain 
nonviolent offenders pilot program, pursuant to 34 U.S.C. 
60541(g), probation ``shall provide such assistance and carry 
out such functions as the Attorney General may request in 
monitoring, supervising, providing services to, and 
evaluating'' that individual. The three standards should be 
made consistent by amending 18 U.S.C. 3624(c) and 34 U.S.C. 
1(g) to require the probation system to provide assistance only 
``to the extent practicable.''

Proposed Legislative Language:

SEC._ CLARIFYING AND HARMONIZING THE OBLIGATION OF THE U.S. PROBATION 
                    SYSTEM TO ASSIST INMATES ON PRERELEASE CUSTODY

    (a) Section 3624(c)(3) of title 18, United States Code, is 
amended by striking ``shall'' and inserting ``should'' after 
``The United States Probation System.''
    (b) Section 3624(g)(7) of title 18, United States Code, is 
amended by striking ``shall'' after ``Bureau of Prisons'' and 
inserting ``should'' in its place, and by striking ``greatest'' 
before ``extent practicable.''
    (c) Section 3624(g)(8) oftitle 18, United States Code, is 
amended by striking ``shall'' after ``United States Probation 
and Pretrial Services'' and replacing it with ``should,'' and 
by striking ``greatest.''
    (d) Section 60541(g)(4) of title 34, United States code is 
amended by striking ``shall provide'' and inserting in its 
place ``should, to the extent practicable, provide.''

      Increase the Speed of Consideration of Compassionate

                        Release Motions

    Description: Facilitate provision of medical records needed 
in compassionate release motions to courts, probation officers, 
and defense counsel in a prompt manner or as ordered by the 
court so that a defendant's motions can be decided as quickly 
as possible.
    Justification: The First Step Act expanded compassionate 
release procedures by authorizing an inmate to file a motion 
directly with the court based on the earlier of exhaustion of 
administrative remedies or the lapse of 30 days from the 
warden's receipt of a request. The expanded procedures, as well 
as the recent COVID-19 pandemic, have led to an increase in 
requests for compassionate release to both the Bureau of 
Prisons (BOP) and the courts. With the increased number of 
requests, there have been delays in providing inmate medical 
records to the courts, defense counsel, and probation offices 
in a timely manner to assess whether an inmate may qualify for 
compassionate release based on medical needs.
    Application: At present there have been delays obtaining 
inmates' medical records by the courts, probation officers, 
defense counsel, and inmates themselves due to limited BOP 
staff and the increase in such motions due to COVID-19. Under 
this provision, 18 U.S.C. 3582(c)(1)(A) would be amended to add 
that if a motion for modification of an imposed term of 
imprisonment includes as a basis for relief that medical 
conditions warrant such a reduction, the defendant's BOP 
medical records must be made accessible ``promptly'' or in a 
time frame ordered by the court, to the court, the probation 
office, the attorney for the government, and the attorney for 
the inmate. Under 34 U.S.C. 60541(d)(5), the BOP is already 
directed to ``provide the United States Probation and Pretrial 
Services System with relevant information on the medical care 
needs and the mental health treatment needs of inmates 
scheduled for release from custody.'' The proposed amended to 
section 3582 would be an expansion of this requirement and 
include an explicit directive that medical records be provided.

Proposed Legislative Language:

SEC._ INCREASING ACCESS TO BOP MEDICAL RECORDS FOR COMPASSIONATE 
                    RELEASE MOTIONS

    Section 3582(c)(1)(A) of title 18, United States Code, is 
amended by inserting the following after ``Sentencing 
Commission'' and before the semicolon:

        ``If a motion for reduction of the imprisonment term includes 
        as a basis for relief that the defendant's medical condition 
        warrants a reduction, the Bureau of Prisons shall promptly 
        produce the defendant's Bureau of Prisons medical records to 
        the court, the probation office, the attorney for the 
        government, and the attorney for the inmate. If additional time 
        is required by the Bureau of Prisons to produce such records, 
        they shall be produced in a time frame ordered by the court.''

        Preserve Existing Article III Judicial Resources

    Description: Preserve and maximize existing judicial 
resource by converting existing temporary judgeships to 
permanent status.
    Justification: When the courts reconstitute after the 
COVID-19 pandemic, the strain will be even greater since there 
will be a backlog of cases that could not be adjudicated during 
the pandemic. The conversion of temporary judgeships will 
ensure these judicial resources are not lost and would help 
ease that strain by providing permanent help, in particular, 
courts where help is needed now more than ever. The Judiciary 
requested this change prior to the pandemic; however, the 
pandemic has highlighted the strain that many courts are 
experiencing due to overwhelming caseloads and an inadequate 
number of judges.
    Application: Convert the following eight existing temporary 
judgeships to permanent status:

    1--Kansas
    1--Missouri Eastern
    1--Arizona
    1--California Central
    1--Florida Southern
    1--New Mexico
    1--North Carolina Western
    1--Texas Eastern

    For your information, two additional temporary judgeships 
exist--one each in Alabama Northern and Hawaii.

Proposed Legislative Language:

    A bill has been introduced in the Senate to accomplish the 
conversion of the eight temporary judgeships requested by this 
proposal. S. 3086, the ``Temporary Judgeship Conversion Act of 
2019,'' was introduced by Senator Moran (KS) on December 18, 
2019 and referred to the Senate Committee on the Judiciary. 
That bill language follows:

SEC._ DISTRICT JUDGES FOR THE DISTRICT COURTS

    (a) In General. The existing judgeships for the district of 
Kansas and the eastern district of Missouri authorized by 
section 203(c) of the Judicial Improvements Act of 1990 (Pub. 
L. 101-650; 28 U.S.C. 133 note) and the existing judgeships for 
the eastern district of Texas, the district of Arizona, the 
central district of California, the southern district of 
Florida, the western district of North Carolina, and the 
district of New Mexico authorized by section 312(c) of the 21st 
Century Department of Justice Appropriations Authorization Act 
(Pub. L. 107-273; 28 U.S.C. 133 note), as of the effective date 
of this Act, shall be authorized under section 133 of title 28, 
United States Code, and the incumbents in those offices shall 
hold the office under section 133 of title 28, United States 
Code, as amended by this Act.
    (b) Tables. In order that the table contained in section 
133(a) of title 28, United States Code, will, with respect to 
each judicial district, reflect the changes in the total number 
of permanent district judgeships authorized as a result of 
subsection (a)--
    (1) The item relating to Arizona is amended to read as 
follows:

 
 
 
 
  ``Arizona.............................   1'';
 

    (2) The item relating to California is amended to read as 
follows:

 
 
 
 
  ``California:                           ..............................
  Northern..............................   14
  Eastern...............................    6
  Central...............................   28
  Southern..............................   13'';
 

    (3) The item relating to Florida is amended to read as 
follows:

 
 
 
 
  ``Florida:                              ..............................
  Northern..............................    4
  Middle................................   15
  Southern..............................   18'';
 

    (4) The item relating to Kansas is amended to read as 
follows:

 
 
 
 
  ``Kansas..............................   6''
 

    (5) The item relating to Missouri is amended to read as 
follows:

 
 
 
 
  ``Missouri:                             ..............................
  Eastern...............................   7
  Western...............................   5
  Eastern and Western...................   2'';
 

    (6) The item relating to New Mexico is amended to read as 
follows:

 
 
 
 
  ``New Mexico..........................   7";
 

    (7) The item relating to North Carolina is amended to read 
as follows:

 
 
 
 
  ``North Carolina:                       ..............................
  Eastern...............................   4
  Middle................................   4
  Western...............................   5'' and
 

    (8) By striking the item relating to Texas and inserting 
the following:

 
 
 
 
  ``Texas:                                ..............................
  Northern..............................   12
  Southern..............................   19
  Eastern...............................    8
  Western...............................   13''.
 

               Emergency Supplemental Judgeships

    Description: It has been decades since the Judiciary's 
judgeships needs were comprehensively addressed by Congress, 
and the pandemic has further highlighted the strain many courts 
are experiencing due to overwhelming caseloads and an 
inadequate number of judges. This proposal would add seven 
additional judgeships to a subset of courts that are in extreme 
need.
    Justification: When the courts reconstitute after the 
COVID-19 pandemic, the strain will be even greater since there 
will be a backlog of cases that could not be adjudicated during 
the pandemic. Two of the districts in extreme need of 
additional judgeships, the Eastern District of California and 
the District of Arizona, have declared judicial emergencies 
(under 18 U.S.C. 3714) due to the effects of the pandemic. 
These declarations were made because those two courts have 
calendars that are so congested that they are unable to meet 
certain statutory time limits to hear cases. Those time limits 
are suspended due to the anticipated backlog of cases. All 
seven of these additional judgeships will be paramount to their 
courts post-pandemic to help those courts reconstitute and 
recover.
    Application: The Judiciary requested additional judgeships 
prior to the pandemic. Seven additional judgeships, which were 
included in the Judicial Conference judgeships request 
submitted last year, would be added as follows:

    1--Indiana Southern
    1--Delaware
    1--New Jersey
    1--Texas Western
    1--Arizona
    1--Florida Southern
    1--California Eastern

Proposed Legislative Language: See attached language.

SEC._ DISTRICT JUDGES FOR THE DISTRICT COURTS

    (a) The President shall appoint, by and with the advice and 
consent of the Senate:
      (1) 1 additional District Judge for the District of 
Arizona;
      (2) 1 additional District Judge for the Eastern District 
of California;
      (3) 1 additional District Judge for the District of 
Delaware;
      (4) 1 additional District Judge for the Southern District 
of Florida;
      (5) 1 additional District Judge for the Southern District 
oflndiana;
      (6) 1 additional District Judge for the District of New 
Jersey;
      (7) 1 additional District Judge for the Western District 
of Texas.

    (b) Tables. In order that the table contained in section 
133(a) of title 28, United States Code, will, with respect to 
each Judicial district, reflect the change in the total number 
of permanent district judgeships authorized as a result of 
subsec-tion (a)--
      (1) The item relating to Arizona is amended to read as 
follows:

 
 
 
 
  ``Arizona.............................   13'';
 

      (2) The item relating to California is amended to read as 
follows:

 
 
 
 
  ``California:                           ..............................
  Northern..............................   14
  Eastern...............................   7
  Central...............................   7
  Southern..............................  13";
 

      (3) The item relating to Delaware is amended to read as 
follows:

 
 
 
 
  ``Delaware............................   5'';
 

      (4) The item relating to Florida is amended to read as 
follows:

 
 
 
 
  ``Florida:                              ..............................
  Northern..............................   4
  Middle................................   15
  Southern..............................   18;
 

      (5) The item relating to Indiana is amended to read as 
follows:

 
 
 
 
  ``Indiana:                              ..............................
  Northern..............................   5
  Southern..............................   6
 

      (6) The item relating to New Jersey is amended to read as 
follows:

 
 
 
 
  ``New Jersey..........................   18''; and
 

      (7) By striking the item relating to Texas and inserting 
the following:

 
 
 
 
  ``Texas:                                ..............................
  Northern..............................   12
  Southern..............................   19
  Eastern...............................   7
  Western...............................   4''.
 

    (c) Authorization of Appropriations.
    There are authorized to be appropriated such sums as may be 
necessary to carry out the provisions of this Act, including 
such sums as may be necessary to provide appropriate space and 
facilities for the judicial positions created by this Act.

   Additional Senior Judge Resources for the U.S. Territorial

                        District courts

    Description: Amend the retirement provisions for judges of 
the Federal District courts of the U.S. territories to permit 
judges of those courts who have completed a full term and have 
at least 15 years of service to immediately serve the court as 
Senior Judges.
    Justification: This provision will have an immediate 
benefit to the judiciary by allowing a judge who has just 
completed his term on the U.S. District court for the Virgin 
Islands to assume senior status at once (and be able to assist 
the court with its caseload) rather than having to wait a 
number of years until attaining age 65, as required under 
current law. This wiU provide an additional resource to the 
comt at a time when the ability for visitin g judges to travel 
to fill the gap is effectively nullified given the prevalence 
of COVID-19 and associated shelter-in-place orders. The 
territorial District courts have active dockets. Increasing the 
availability of senior judges, as provided for in this 
proposal, would provide a key resource for the Federal 
Judiciary in the Territories during this time of crisis and 
will ensure continued functioning of the territorial District 
courts without disruption of functions or compromise of 
Constitutional safeguards.
    Application: There are three U.S. District courts in the 
U.S. territories--Guam, the Virgin Island, and the Nolthem 
Maliana Islands (NMI), with four judgeships (two in the Virgin 
Islands and one each in Guam and NMI). The judges of these 
courts are appointed by the President and confirmed by the 
Senate for a term of 10-years or until their successor is 
appointed. The current retirement statute does not allow 
district judges in the territories who have completed a term of 
service to immediately enter senior service if they are under 
the age of 65. This provision would allow judges who have 
completed a term and have at least 15 year of service to serve 
the court as Senior Judges before reaching age 65. Currently, 
Guam and the Virgin Islands have no senior judges. NMI has one 
senior judge who lives in Idaho and cannot now travel to NMI. 
If the term of service for each of the current judges in the 
Territories ends during the course of this pandemic, under the 
current statutory scheme, none of the judges would be able to 
serve as a Senior Judge. This provision would provide, over the 
next 16 months, as many as four Senior Judges--two for the 
Virgin Islands, one for Guam, and one for NMI.

Proposed Legislative Language:

    A bill has been introduced in the House to accomplish this 
proposal. H.R. 6593, the ``Territorial Judgeship Retirement 
Equity Act of 2020,'' was introduced by Delegates San Nicolas 
(Guam), Sablan (Northern Marianas Islands), and Plaskett 
(Virgin Islands), on April 21, 2020. See attached bill.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

 Eliminating Inefficient and Unfair Annual Leave Treatment for 
    Senior Court Executives, as Exacerbated by the COVID-19 
                       National Emergency

    Description: This proposal addresses a fundamental 
disparity, as exacerbated by the COVID-19 national emergency, 
between the treatment of certain Senior Court Unit Executives 
and their counterparts in the Executive and Legislative 
Branches with respect to their ability to carryover unused 
annual leave in excess of 240 hours. The proposal would allow 
certain Court Unit Executives to carryover up to 720 hours of 
annual leave like most comparable Senior Level Executives in 
the Executive and Legislative Branches. Currently, Court Unit 
Executives may only carryover 240 hours of annual leave.
    Justification: In direct response to the COVID-19 pandemic, 
many judicial branch Senior Executives have been required to 
undertake extraordinary and extended efforts, without taking 
any annual leave, to ensure the Federal Judiciary continues to 
function and meet its constitutional mandates. Thus, it is 
highly unlikely that these employees will be able to take time 
off now or in the next several months, at a minimum. Based on 
preliminary information on both leave taken and future leave 
requests made by Senior Court executives for the period January 
1-April 30 of this year, their current and anticipated leave 
usage is less than 50 percent of the leave taken and/or planned 
for the comparable period in both 2018 and 2019.
    Application: Senior executives within the Federal 
Government are often unable to use all their accrued annual 
leave given their critical management responsibilities. For 
this reason, Senior Executives throughout the Executive and 
Legislative Branches have long been granted statutory authority 
to carry over up to 720 hours of accrued annual leave for use 
in future years. Unfortunately, similar authority has not been 
extended to Senior Executives in the Federal courts, the 
Federal Judicial Center, or the U.S. Sentencing Commission, 
even as these Senior Executives experience similar management 
demands and significant limitations on their ability to take 
leave. This proposal addresses this disparity by extending to 
specified Senior Court Executives the same authority to 
carryover up to 720 hours of annual leave as is currently 
authorized for Senior Executives throughout the rest of the 
Federal Government.
    Legislation: This proposal principally consists of the text 
of H.R. 5735, the ``Judicial Branch Senior Executive Leave 
Efficiency and Modernization Act of 2020,'' a bipartisan 
measure that would extend the authority to carryover up to 720 
hours of annual leave to Circuit Executives, District court 
Executives, Clerks of Court, Chief Probation Officers, Chief 
Pretrial Services Officers, Senior Staff Attorneys, Chief Pre-
argument Attorneys, Bankruptcy Administrators, and Circuit 
Librarians as well as a limited number of specific senior 
positions within the Federal Judicial Center and the Sentencing 
Commission. In addition, the proposal would apply to the Clerk 
of the Foreign Intelligence Surveillance Court, the Clerk of 
the Bankruptcy Appellate Panel, and the Clerk and Panel 
Executive of the Judicial Panel on Multidistrict Litigation. 
H.R. 5735 was introduced on January 30, 2020 by Representatives 
Jamie Raskin (MD) and Martha Roby (AL). Proposed bill language 
is attached.

SEC._ CARRYOVER OF ANNUAL LEAVE FOR CERTAIN SENIOR POSITIONS IN THE 
                    JUDICIAL BRANCH OF GOVERNMENT

    Paragraph (1) of section 6394(f) of title 5, United States 
Code, is amended--
    (1) subparagraph (G), by striking ``or'' at the end;
    (2) in the first subparagraph (H) (relating to Library of 
Congress positions), by striking the period at the end and 
inserting a semicolon;
    (3) by redesignating the second subparagraph (H) (relating 
to positions in the United States Secret Service Uniformed 
Division) as subparagraph (I);
    (4) in subparagraph (I), as redesignated by paragraph (3), 
by striking the period at the end and inserting ``; or''; and
    (5) by adding at the end the following:
      ``(J) any of the following possition within the Judicial 
Branch of Government:
        ``(i) Bankruptcy Administrator as described in section 
302(d)(3)(I) of Public Law 99-554.
        ``(ii) Circuit Executive appointed under section 332(e) 
of title 28.
        ``(iii) Chief Circuit Librarian appointed under section 
713(a) of title 28.
        ``(iv) Senior Staff Attorney appointed under section 
715(a) of title 28.
        ``(v) Federal Public Defender appointed under section 
3006A(g)(2)(A) of title 18.
        ``(vi) Chief Pretrial Services officer appointed under 
section 3152(c) of title 18.
        ``(vii) Chief Probation Officer appointed under section 
3602(c) of title 18.
        ``(viii) Any Clerk appointed pursuant to section 
156(b), 711(a), 751(a), 791(a), or 871 of title 28, but not 
including any Chief Deputy Clerk, Assistant Clerk, or Deputy 
Clerk appointed under such sections. ``(ix) District court 
Executive.
        ``(x) Chief Circuit Mediator.
        ``(xi) The Director, the Deputy Director, the Director 
of the Education Division, the Director of the Research 
Division, and the Director of the Information Technology Office 
within the Federal Judicial Center.
        ``(xii) The Staff Director, the Deputy Staff Director, 
the General Counsel, the Director of Education and Sentencing 
Practices, the Director of Research and Data, the Director of 
Legislative and Public Affairs, and the Director of 
Administration within the United States Sentencing Commission.
        (xiii) The Clerk of Court for the United States Foreign 
Intelligence Surveillance Court.
        ``(xiv) The Clerk of Court and Panel Executive for the 
United States Judicial Panel on Multidistrict Litigation.
        ``(xv) The Clerk of Court for the Bankruptcy Appellate 
Panel.''

       Amendments to Statutory Bankruptcy Code Deadlines

    Description: Provide Bankruptcy Courts with authority to 
extend and toll statutory deadlines and time periods during the 
COVID-19 National Emergency, where there is currently no 
flexibility to do so in either the Bankruptcy Code or other 
Federal statutes.
    Justification: Courts, Clerks, and parties may be unable to 
meet statutory deadlines or Act as required within those time 
periods due to emergency conditions as a result of the COVID-19 
National Emergency declaration that materially affect the 
functioning of a particular bankruptcy court.
    Application: Provide Bankruptcy Courts with authority to 
extend and toll statutory deadlines and time periods during the 
COVID-19 National Emergency, where there is currently no 
flexibility to do so in either the Bankruptcy Code or other 
Federal statutes, upon a finding that the emergency conditions 
due to the National Emergency declaration materially affect the 
functioning of a particular Bankruptcy Court. While some 
Bankruptcy Courts have entered general orders based on the 
COVID-19 crisis that extend certain statutory deadlines, many 
Bankruptcy Judges have stated that they feel uncomfortable with 
the scope of their apparent authority pursuant to general 
orders, and that a statutory fix is necessary. The Bankruptcy 
Code includes many deadlines for the court, the Clerk, and 
parties in bankruptcy cases, as well as time periods that 
expire by operation of law.

Proposed Legislative Language: See attached language.

SEC._ EXTENSION OF TIME IN BANKRUPTCY CASES

    (a) Definition. In this section, the term ``covered 
emergency period'' means the period beginning on the date on 
which the President declared a national emergency under the 
National Emergencies Act (50 U.S.C. 1601 et seq.) with respect 
to the Coronavirus Disease 2019 (COVID-19) and ending on the 
date that is 30 days after the date on which the national 
emergency declaration terminates.
    (b) Emergency Authority to Extend Deadlines and Time 
Periods.
    (1) When a provision of title 11 or chapter 6 of title 28, 
United States Code:
      (A) Requires or allows a Court, Clerk, or any party in 
interest to take an action, to commence a proceeding, to file a 
motion, to file or send a document, or to hold a hearing by a 
specified deadline, or
      (B) creates or sets forth a time period that ends or 
expires by operation of law; and
    (2) the Chief Judge of a Bankruptcy Court (or, if the Chief 
Judge is unavailable, the most senior available active 
Bankruptcy Judge or the Chief Judge or Circuit Justice of the 
circuit that includes the Bankruptcy Court) finds that 
emergency conditions due to the National Emergency declared by 
the President of the United States under the National 
Emergencies Act (50 U.S.C. 1601 et seq.) with respect to the 
Coronavirus Disease 2019 (COVID-19) will materially affect the 
functioning of a particular Bankruptcy Court of the United 
States; then
    (3) the Judge or Justice making the finding in subsection 
(b)(2) of this section may:
      (A) Extend or toll such deadline or time period for all 
cases and proceedings in the district (or specific cases or 
proceedings), for a period of time not to exceed the duration 
of the emergency or major disaster declaration; or
      (B) authorize any other judge in the district to extend 
or toll such deadline or time period in a specific case or 
proceeding, for a period of time not to exceed the duration of 
the emergency or major disaster declaration.
    (c) Deadlines and Time Periods Upon Termination of 
Emergency Authority. Upon termination of the authority under 
subsection (e) of this section, any deadline or time period 
extended or tolled under subsection (b)(3) of this section 
shall be extended or tolled beyond the date on which such 
authority under subsection (e) terminates for an additional 
period that is the later of: (1) Thirty (30) days or (2) the 
period of time originally required, imposed, or allowed by 
title 11 or chapter 6 of title 28, or applicable non-bankruptcy 
law. On request of a party in interest, and for good cause 
shown after notice and a hearing, the court may shorten the 
length of an additional period under this subsection.
    (d) Exceptions to Emergency Authority. On request of a 
party in interest, and for good cause shown after notice and a 
hearing, the Court may in a specific case or proceeding waive 
any extension or tolling of a deadline or time period under 
subsection (b) or (c) of this section.
    (e) Termination of Emergency Authority. The authority and 
specific authorizations provided under subsection (b) of this 
section shall terminate on the earlier of--
    (1) the last day of the covered emergency period; or
    (2) the date on which the Chief Judge of the Bankruptcy 
Court (or, if the Chief Judge is unavailable, the most Senior 
available active Bankruptcy Judge or the Chief Judge or Circuit 
Justice of the Circuit that includes the Bankruptcy Court) 
finds that emergency conditions no longer materially affect the 
functioning of that particular Bankruptcy Court.

Authorize 60-Day Extension of Statutory Deadline for Dodd-Frank 
       Report as a Result of COVID-19 National Emergency

    Description: This proposal would extend for approximately 
60 days the date on which this report is due from July 21, 2020 
to September 18, 2020. Pursuant to 12 U.S.C. 5382(e)(l), the 
Director of the Administrative Office of the U.S. Courts (AO) 
must study and submit to Congress a report on the bankruptcy 
and orderly liquidation process for financial companies under 
the Bankruptcy Code. In recognition of the fact that the 
completion of this study--which requires comprehensive input 
from various parties in the bankruptcy community as well as 
from the Federal Judiciary--will likely be impeded by the 
COVID-19 pandemic.
    Justification: To assist in the preparation of this study, 
the AO Director appointed a Dodd-Frank Study Working Group in 
2019, whose Members are primarily Bankruptcy Judges sitting in 
New York, Delaware, Michigan, and Maryland, areas where the 
COVID-19 pandemic has been particularly devastating. In turn, 
the Task Force's ability to obtain the information from the 
bankruptcy community necessary to complete this study and 
prepare the report may be delayed. Accordingly, the proposal 
seeks an approximate 60-day extension of the statutory due date 
to ensure compliance.
    Application: As amended, the change would provide an 
approximate 60-day extension to submit the report required by 
section 5382(e)(l), from July 21, 2020 to September 18, 2020.

Proposed Legislative Language:

SEC._ EXTENSION OF STATUTORY DEADLINE FOR DODD-FRANK REPORT

        ``The deadline set by 12 U.S.C. 5382(e)(2), of no later than 
        July 21, 2020, for the Administrative Office of the United 
        States Courts to submit to the Committee on Banking, Housing, 
        and Urban Affairs and the Committee on the Judiciary of the 
        Senate and the Committee on Financial Services and the 
        Committee on the Judiciary of the House of Representatives a 
        report summarizing the results of the studies conducted under 
        12 U.S.C. 5382(e)(l), is hereby extended to September 18, 
        2020.''

        Ensuring Adequate Bankruptcy Judicial Resources

    Description: Convert fourteen temporary bankruptcy 
judgeships to permanent status.
    Justification: The economic impact of the COVID-19 pandemic 
in some respects exceeds that of the 2008 Great Recession. More 
than one in ten Americans is unemployed and various industries 
have been particularly devastated, including the retail, 
travel, and automotive sectors, among others. The expected 
increase in bankruptcy reorganization cases, particularly in 
Delaware, will likely result in a significant workload increase 
as these cases often involve very complex and time-consuming 
matters that require extensive judicial resources. The 
districts included in this request demonstrated a need for 
conversion of these positions to permanent status prior to the 
COVID-19 pandemic. Filings across the nation, including in each 
of the districts included in this request, are expected to 
increase significantly during the recovery from COVID-19. These 
temporary judgeships have expired or are due to expire in 2022 
and 2024.
    Application: Convert the following 14 temporary bankruptcy 
judgeships to permanent status:

    7--Delaware
    2--Puerto Rico
    2--Michigan Eastern
    I--Maryland
    1--Florida Middle
    1--Florida Southern

Proposed Legislative Language: See Attached Language.

SEC._ CONVERSION OF EXISTING TEMPORARY BANKRUPT-CY JUDGESHIPS

    (a) District of Delaware--
    (1) The four (4) temporary bankruptcy judgeships authorized 
for the District of Delaware pursuant to section 1223(b)(l)(C) 
of Public Law 109-8 (2005), as extended by section 2(a)(l)(C) 
of Public Law 112-121 (2012) and further extended by section 
1002(a)(l)(A) of Division B of Public Law 115-72 (2017) (28 
U.S.C. 152 note), are converted to permanent bankruptcy 
judgeships under section 152(a)(2) of title 28, United States 
Code.
    (2) The two (2) temporary bankruptcy judgeships authorized 
for the district of Delaware pursuant to section 1003(a)(1) of 
Division B of Public Law 115-72 (2017) (28 U.S.C. 152 note), 
are converted to permanent bankruptcy judgeships under section 
152(a)(2) of title 28, United States Code.
    (3) The temporary bankruptcy judgeship authorized for the 
District of Delaware pursuant to section 3(a)(3) of Public Law 
102-361 (1992), as amended by section 307 of title III of 
Public Law 104-317 (1996), and as extended by section 
1223(c)(I) of Public Law 109-8 (2005), further extended by 
section 2(b)(1) of Public Law 112-121 (2012), and further 
extended by section 1002(b)(l) of Division B of Public Law 115-
72 (2017) (28 U.S.C. 152 note), is converted to a permanent 
bankruptcy judgeship under section I52(a)(2) of title 28, 
United States Code.
    (b) Middle District of Florida--The temporary bankruptcy 
judgeship authorized for the middle district of Florida 
pursuant to section 1003(a)(2) of Division B of Public Law 115-
72 (2017) (28 U.S.C. 152 note), is converted to a permanent 
bankruptcy judgeship under section 152(a)(2) of title 28, 
United States Code.
    (c) Southern District of Florida--One (1) of the temporary 
bankruptcy judgeships authorized for the Southern District of 
Florida pursuant to section 1223(b)(l)(D) of Public Law 109-8 
(2005), as extended by section 2(a)(l)(D) of Public Law 112-121 
(2012) and further extended by section 1002(a)(l)(B) of 
Division B of Public Law 115-72 (2017) (28 U.S.C. 152 note), is 
converted to a permanent bankruptcy judgeship under section 
152(a)(2) of title 28, United States Code.
    (d) District of Maryland--One (1) of the temporary 
bankruptcy judgeships authorized for the district of Maryland 
pursuant to section 1223(b)(l)(F) of Public Law 109-8 (2005), 
as extended by section (a)(l)(F) of Public Law 112-121 (2012) 
(28 U.S.C. 152 note), is converted to a permanent bankruptcy 
judgeship under section 152(a)(2) of title 28, United States 
Code.
    (e) Eastern District of Michigan--
    (1) The temporary bankruptcy judgeship authorized for the 
Eastern District of Michigan pursuant to section 1223(b)(1)(G) 
of Public Law 109-8 (2005), as extended by section 2(a)(1)(G) 
of Public Law 112-121 (2012) and further extended by section 
1002(a)(1)(D) of Division B of Public Law 115-72 (2017) (28 
U.S.C. 152 note), is converted to a permanent bankruptcy 
judgeship under section 152(a)(2) of title 28, United States 
Code.
    (2) The temporary bankruptcy judgeship authorized for the 
eastern district of Michigan pursuant to section 1003(a)(3) of 
Division B of Public Law 115-72 (2017) (28 U.S.C. 152 note), is 
converted to a permanent bankruptcy judgeship under section 
152(a)(2) of title 28, United States Code.
    (f) District of Puerto Rico--
    (1) The temporary bankruptcy judgeship authorized for the 
district of Puerto Rico pursuant to section 3(a)(7) of Public 
Law 102-361 (1992), as amended by section 307 of title III of 
Public Law 104-317 (1996), and as extended by section 
1223(c)(l) of Public Law 109-8 (2005), further extended by 
section 2(b)(l) of Public Law 112-121 (2012),and further 
extended by section 1002(b)(1) of Division B of Public Law 115-
72 (2017) (28 U.S.C. 152 note), is converted to a permanent 
bankruptcy judgeship under section 152(a)(2) of title 28, 
United States Code.
    (2) The temporary bankruptcy judgeship authorized for the 
district of Puerto Rico pursuant to section 1223(b)(1)(P) of 
Public Law 109-8 (2005), as extended by section 2(a)(l)(M) of 
Public Law 112-121 (2012) and further extended by section 
1002(a)(l)(G) of Division B of Public Law 115-72 (2017) (28 
U.S.C. 152 note), is converted to a permanent bankruptcy 
judgeship under section 152(a)(2) of title 28, United States 
Code.
    (g) Technical Amendments. Section 152(a)(2) of title 28, 
United States Code, is amended--
    (1) in the item relating to the district of Delaware, by 
striking ``1'' and inserting ``8'';
    (2) in the item relating to the middle district of Florida, 
by striking ``8'' and inserting ``9'';
    (3) in the item relating to the southern district of 
Florida, by striking ``5'' and inserting ``6'';
    (4) in the item relating to the district of Maryland, by 
striking ``4'' and inserting ``5'';
    (5) in the item relating to the eastern district of 
Michigan, by striking ``4'' and inserting ``6''; and
    (6) in the item relating to the district of Puerto Rico, by 
striking ``2'' and inserting ``4.''

    Temporary Suspension of the POWER Act Event Requirements

    Description: Allow the suspension of the pro-bono legal 
education event requirements under the POWER Act for public 
safety reasons during the COVID-19 pandemic.
    Justification: Judges and court personnel have canceled or 
postponed public events, including naturalization ceremonies, 
due to the COVID-19 pandemic. While public events emphasizing 
the importance of pro-bono services in domestic abuses cases 
are important, courts do not want to jeopardize public health 
by holding such events until health officials confirm that it 
is safe to do so.
    Application: The POWER Act of 2018 requires courts to hold 
annual public events highlighting the importance of pro bono 
representation in domestic abuse cases. An annual report is due 
to Congress before the end of the calendar year. This proposal 
would allow the suspension of the requirement to hold public 
events under the POWER Act during the COVID-19 pandemic if the 
chief judge of a district makes a finding that to do so would 
jeopardize public health and safety.

Proposed Legislative Language:

SEC._ TEMPORARY SUSPENSION OF THE POWER ACT EVENT REQUIREMENTS

    Section 3 of the POWER Act, Public Law 115-237, is amended 
to add section (d) as follows:
    (d) Protecting Public Health and Safety. Notwithstanding 
this section, the Chief Judge, or his or her designee, for each 
Judicial District is not required to conduct any public event 
promoting pro bono legal services during fiscal year 2020 if 
the chief judge notifies the Director of the Administrative 
Office of the United States Courts by September 30 that 
conducting a public event would jeopardize public health or 
safety or violate State or local orders restricting public 
gatherings. A Chief Judge who provides notice pursuant to this 
provision is not required to submit a report under section 4.

 Add a Federal Defender as an Ex-officio, Non-voting Member of 
                 the U.S. Sentencing Commission

    Description: Add a Federal Defender as an ex officio, 
nonvoting member of the U.S. Sentencing Commission.
    Justification: During the pandemic, and in the aftermath of 
the pandemic, there will be a need to address what the ``new 
normal'' looks like in terms of appropriate sentencing policies 
and practices for the Federal courts and the Sentencing 
Commission will serve a unique role in addressing these issues. 
One of the Commission's principal purposes is to establish 
sentencing policies and practices for the Federal courts. Each 
year, the Commission reviews and refines the guidelines in 
light of congressional action, decisions from Courts of 
Appeals, sentencing-related research, and input from the 
criminal justice community. Given the legislative changes that 
have already taken place in response to the pandemic, and the 
likelihood of even more legislative changes, there will be a 
need to reevaluate existing sentencing policies and practices 
for the Federal courts.
    Federal defenders are working on the front lines of the 
pandemic within the Federal court system and have unique 
experiences and perspectives to contribute to any potential 
reevaluation of existing sentencing policies and practices--
including the use of conditions of confinement as a factor in 
determining a sentence--especially given the adversary nature 
of our criminal justice system. The need for a defender voice 
is great, especially given that the Attorney General and U.S. 
Parole Commission have existing ex-officio, nonvoting members. 
Adding a Defender as an ex-officio, nonvoting member will help 
to make policy discussions more robust and assure that the any 
policy changes following the COVID-19 pandemic are truly 
representative of all the stakeholders within the criminal 
justice system.
    Application: Support the existing JCUS policy of adding a 
Defender as an ex-officio, nonvoting member of the U.S. 
Sentencing Commission.

Proposed Legislative Language:

SEC._ FEDERAL DEFENDER REPRESENTATNE AS A NON-VOTING MEMBER OF THE U.S. 
                    SENTENCING COMMISSION.

    (a) Subsection (a) of section 991 of title 28, United 
States Code, is amended by striking ``one nonvoting member'' at 
the end of the first sentence and inserting ``two nonvoting 
Members.'', and by inserting before the last sentence the 
following new sentence: ``A Federal defender representative 
designated by the Judicial Conference of the United States 
shall be a nonvoting member of the Commission.''
    (b) The final sentence of section 235(b)(5) of title II, 
Public Law No. 98-473 as amended, is amended by striking the 
phrase ``nine Members, including two ex-officio, nonvoting 
Members'' and inserting ``ten Members, including three 
nonvoting Members.''

    Mr. Johnson of Georgia. Thank you, Judge Campbell.
    Chief Justice McCormack, you may begin.

               TESTIMONY OF BRIDGET M. McCORMACK

    Judge McCormack. Thank you for the invitation to testify 
and for the opportunity to talk about how Michigan's judiciary 
has responded to the COVID-19 crisis.
    Let me first put our workload in context. Michigan has 242 
trial courts that adjudicate almost 3 million cases each year. 
Our courthouses are high density places, and also, unlike 
restaurants and salons, they are not places people generally 
have a choice about whether to visit.
    We had to figure out how to maintain access to justice and 
also keep the public and our court employees safe.
    Public trust is the only currency courts have. The rule of 
law is, after all, just a set of ideas that are only as good as 
our collective faith in them. With a great majority of 
litigants unrepresented, we build that trust in our courtrooms 
by what we do and how we do it.
    In three months, we have changed more than in the past 
three decades and now, seeing the benefits of innovation, we 
have a unique opportunity to create long-term and much-needed 
change for our justice system.
    This pandemic was not the disruption that any of us wanted. 
It might be the disruption we needed to transform our judiciary 
into a more accessible, transparent, efficient, and customer-
friendly branch of government.
    We had a bit of a head start in Michigan. Before the 
pandemic, our administrative team at the Supreme Court had 
invested in outfitting every courtroom in the State with a 
video conferencing system and every judge with a Zoom license.
    In mid-March, on a dime our team moved our entire workforce 
to remote work. From home offices, kitchen tables, and basement 
rec rooms, our management analysts and information technology 
teams have been working overtime to provide policy advice, 
practical guidelines, and technical support to transition a 
statewide judiciary to virtual courtrooms.
    Michigan's court system is not like the Federal Judiciary 
with one funding source and one case management system. Our 
nonunified system of 242 courts has 160 different funding 
units, nearly two dozen case management systems, and 560 
different elected judges.
    Despite this byzantine system, since April 1st, judges have 
held well over 50,000 Zoom hearings and are approaching 350,000 
hours of online proceedings. To maintain public access, these 
hearings are live streamed to YouTube.
    For easy public access to them, we have built a virtual 
courtroom directory, which is a clickable map that allows 
people to watch any judge in the state.
    This directory has been used more than 25,000 times in the 
past month alone. One hearing in particular, which had high 
public interest, had over 8,000 viewers at one point.
    We also pioneered an online dispute resolution platform 
that allows residents to resolve disputes with or without a 
mediator on a phone, tablet, or laptop instead of going to 
court.
    Our free My Resolve service will soon be available to every 
resident in the state. We also are pilot testing text messages 
to notify the public of court events and payments.
    Dentists do it. Why not judges?
    Our online legal resource center, Michigan Legal Help, is 
helping 10,000 visitors each day in addition to their regular 
toolkits. They have more than 30 COVID-19 related resources 
with the most popular providing information regarding 
unemployment insurance.
    We have issued a series of emergency orders to guide and 
support the trial court's transformation in response to the 
crisis, removing barriers to remote proceedings and innovating 
new processes.
    For one example, we transformed how courts will handle the 
eviction backlog proceedings once we expect once moratoria ends 
at the end of this month.
    Our order protects public health, rationalizes case 
processing, and connects litigants to the resources available 
to resolve these cases, including $60 million from the CARES 
Act. Thank you very much.
    Virtual courtrooms are making our judiciary more accessible 
to the public. Litigants can appear in courts--excuse me, 
lawyers can appear in courts in faraway parts of the State all 
in the same morning.
    Litigants can appear in court without having to miss work. 
I talked to a judge recently who had a criminal defendant take 
a plea in a misdemeanor in a break room from his job in a 
different state. He was grateful that he did not have to miss a 
day of work and grateful to be able to take responsibility and 
get on with his life.
    Litigants who have disabilities don't have to worry about 
figuring out how to make it to court. Transportation, parking, 
childcare, and job responsibilities are not barriers to remote 
proceeding participation. It turns out Zoom is less 
intimidating for parties who appear without lawyers. At least 
this is what we have learned so far.
    There is something about the equalizing nature of all of 
the Zoom boxes being the same size that makes people feel more 
heard and more respected. Maybe it is just less intimidating.
    Looking to the future, we cannot retool old ways to get 
people back into courthouses where access to justice is an 
ongoing problem.
    Instead, we must focus our resources on bringing justice to 
people where they live and where they work. We must rebuild 
what we do from the ground up and create a 21st century justice 
system that is accessible, effective, transparent, efficient, 
and fair.
    By embracing innovation, collaboration, agility, and user-
centric design, we will do just that.
    I look forward to answering any questions that you have and 
thank you again for the opportunity to address you.
    [The statement of Judge McCormack follows:]
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Johnson of Georgia. Thank you, Chief Justice McCormack.
    Next, Judge Fogel. You may begin.

                   TESTIMONY OF JEREMY FOGEL

    Judge Fogel. Thank you, Mr. Chair.
    Mr. Chair, Ranking Member Roby, and Members of the 
subcommittee, I am honored to be here with you, and I am going 
to summarize my statement in three respects.
    This crisis that we are all dealing with has been 
devastating to so many people in so many ways, and I think it 
is also important to recognize that it presents an opportunity.
    We have been forced--the judiciary, along with many other 
institutions, has been forced to do things differently. It has 
been forced to do things that it would not have contemplated 
had this crisis not occurred.
    The result of it having done it is that there is an 
enormous amount of data. The experience that the Federal courts 
have already had, the experience that the State courts have 
had, all of that has given us information about how these 
processes actually work, what is beneficial about them, what 
isn't beneficial about them, where the technical glitches are, 
and I think it would be a shame if we did not take advantage of 
that.
    One of the things I am going to suggest that the 
Subcommittee consider is formalizing the idea of a study of 
this data so that we can look at it in a thoughtful and 
critical way.
    Judge Campbell is an old friend and I have immense respect 
for the processes of the--of the Rules Committee. So I think it 
normal times it produces very well-considered and thoughtful 
work that avoids unintended consequences.
    It also reflects a certain small C conservative nature that 
the Federal Judiciary has, and we are faced with a situation 
now where that typical approach is not quite as feasible as it 
normally is.
    So, we have to figure out a way to proceed with care and 
thoughtfulness and deliberation but at the same time recognize 
that we are working with a very much shortened time frame 
because of the conditions that we are in and the backlog that 
is continuing to build up.
    I think I want to pick up on a point that Ranking Member 
Roby made at the beginning. There are several different 
dimensions of this problem. I describe them in a meeting we had 
yesterday.
    There are vectors. There are forces that are at work, and 
one of them, certainly, is access. It is the idea that the 
public has a right to see what is going on and that people have 
to have the ability to get into court. So, the use of virtual 
technologies to increase access or provide access is an 
absolutely critical value, a critical principle.
    Equally important is efficiency. We have to get the work 
done, and Chair Johnson referred to that in his opening remarks 
that the work has to be done in a timely way so that people 
don't wait forever for justice that can't wait.
    So, the value of efficiency is very important.
    Finally, and I think this goes to Ranking Member Roby's 
point, there is this whole idea of the quality, the value, the 
core values of the judiciary.
    What really matters people need to be heard. People need to 
be seen. People need to be respected. There are socioeconomic 
differences in terms of who can get virtual access to what 
kinds of proceedings and it is something that the courts need 
to think about.
    How do you do this in a rural area? How do you do this in a 
place where people don't have internet access or it is not 
readily available to them? What kinds of proceedings just 
really aren't that amenable to virtual justice?
    You are sentencing someone to prison for 20 years. Do you 
really want to do it that way? How do you do a constitutional 
jury trial in a criminal case?
    All of this, to me, is imperative that we study these 
issues. We think about them with care and we not waste the 
opportunity that the current crisis has presented to us.
    So, I think if I were to have a wish list, one would be 
that the Subcommittee recommend and authorize that type of 
study is a far-reaching study of the many aspects of this 
problem, and secondly, that it do--it needs to, and this echoes 
something Judge Campbell said, provide the legislative 
authorization to continue experimentation, to suspend rules 
that need to be suspended or give the judiciary these leeway to 
continue the experimenting that it is doing.
    I agree with Chief Justice McCormack that I don't think we 
are ever going back to where we were before. I think that is--
maybe some people would like that to happen.
    I think that is unlikely to happen, and we have to 
anticipate a new normal and we have to build that new normal 
with the same kind of care and deliberation that we built the 
old normal.
    Thank you very much. It has been an honor to be with you, 
and I look forward to answering whatever questions you have of 
me.
    [The statement of Judge Fogel follows:]

    EXPANDING ELECTRONIC ACCESS TO THE FEDERAL COURTS: THE 
                     UNEXPECTED OPPORTUNITY

               PRESENTED BY THE COVID-19 PANDEMIC

                    Hon. Jeremy Fogel (ret.)

        Executive Director, Berkeley Judicial Institute,

                      Berkeley Law School

    Chair Johnson and Ranking Member Roby:

    My name is Jeremy Fogel. Since September 2018, I have 
served as the Executive Director of the Berkeley Judicial 
Institute (BJI), a center at Berkeley Law School whose mission 
is to build bridges between judges and academics and to promote 
an ethical, resilient and independent judiciary. Before that, I 
was a Judge of the California State and Federal trial courts 
for thirty-seven years. From 2011 to 2018, I was the Director 
of the Federal Judicial Center (FJC) here in Washington. The 
FJC is responsible for both professional education and applied 
research on behalf of the Federal Judiciary. Its governing 
board is chaired by the Chief Justice of the United States.
    The COVID-19 pandemic has had a dramatic disruptive effect 
on our Federal and State Judicial systems. Courthouses have 
been closed; legal proceedings have been conducted with minimal 
staffing, held remotely, or postponed for months; and court 
personnel have scrambled to work effectively from home.
    The Federal courts, which long have been resistant to 
electronic access and virtual proceedings, have been forced to 
implement emergency measures to facilitate them. The Federal 
Judiciary deserves much credit for its ongoing efforts to deal 
with this unprecedented situation. It has recognized the 
severity of the challenge and has faced it with its customary 
competence and care. It would be disappointing if the measures 
it has taken simply were abandoned wholesale when the current 
emergency has passed. While it goes without saying that their 
primary concern must the health and safety of their users and 
personnel, the courts also have an unexpected and unprecedented 
opportunity to study the costs and benefits of new ways of 
doing their work.
    History teaches us that a crisis often can be the catalyst 
of innovations that endure long after the crisis itself has 
ended. The emergency programs that were implemented to mitigate 
the worst effects of the Great Depression permanently 
transformed our understanding of the role of government, and in 
so doing they left a legacy ranging from rural electrification 
to economic guardrails to Social Security. It is doubtful that 
any of these changes would have occurred, at least when and how 
they did, had the disruption of our nation's economy been less 
severe.
    Even in this politically polarized age, our Federal courts 
are widely respected for their independence, the 
professionalism of their judges and staff, and the seriousness 
with which they approach their work. Social and partisan 
controversies aside, in my experience the great majority of 
Federal Judges do their best to decide the great majority of 
cases on the basis of competent evidence and applicable legal 
principles. This is not true in much of the rest of the world.
    The Federal courts also are a ``small c'' conservative 
institution. The same seriousness that inspires Federal Judges 
to produce high-quality work also leads them to be reflexively 
cautious about structural change. Always concerned (and 
properly so) about the unintended consequences of different 
ways of doing things, the Federal Judiciary tends to consider 
new ideas infrequently, at great length and in granular detail. 
Even the pilot projects it occasionally undertakes to study 
potential innovations tend to be carefully limited in scope and 
to produce modest, incremental results.
    Such caution can have great value in normal times, but a 
disruption on the scale of the COVID-19 pandemic changes 
everything. The public access to court proceedings guaranteed 
by the Constitution has been impossible, at least in a physical 
sense, in the context of shelter-in-place orders and the 
potential risks to court users and staff. Jury trials and in-
person oral arguments have been impracticable, movement of in-
custody criminal defendants is fraught with logistical 
problems, and public visits to courtrooms and court clerk's 
offices have not been a realistic option. Even the United 
States Supreme Court, which long has refused to permit any 
real-time transmission of its proceedings, now has conducted 
telephonic hearings and has provided a live feed of those 
hearings to the news media and thus to the public. Most would 
agree that the importance of the remaining cases on the Court's 
docket made such a step necessary. While some of the dynamics 
of oral argument have changed, the Court's forced experiment 
has not had the negative impact on the dignity of the Court's 
proceedings that some had feared.
    On March 31, the Administrative Office of the United States 
Courts (AO) issued detailed guidance enabling circuit, district 
and bankruptcy courts to use video and audio technology to 
provide court users and the public with remote access in non-
criminal matters. On April 2, the AO published additional 
guidance permitting electronic access to most criminal 
proceedings notwithstanding Federal Rule of Criminal Procedure 
53, which prohibits such access. Both directives stressed that 
these departures from normal practice are intended to be 
temporary and will terminate once the current national 
emergency has passed. This limitation was understandable, as 
only limited authority to bypass existing rules was granted by 
Congress under the CARES Act.
    Unfortunately, while courts and other services have begun a 
slow process of reopening in some parts of the country, it 
likely will be many more months before full court operations 
can resume safely nationwide. In the meantime, the expanded 
implementation of electronic access to court operations already 
has produced--and will continue to produce--a bounty of 
illuminating data concerning each of the principal areas of 
concern that have been cited in the past to support judicial 
reservations about greater use of virtual proceedings.
    One of those areas of concern is privacy. Understandably, 
courts are reluctant to see images of witnesses, parties, 
lawyers, jurors, and judges appearing widely on the Internet or 
on social media. The exigencies of the present situation have 
required courts to think about practical ways of balancing 
these privacy interests with the transparency provided by 
virtual public access. The AO's April 2 guidance for criminal 
matters touched on this issue by making clear that while 
certain proceedings may be seen or heard over dedicated 
electronic media, full Internet streaming is not authorized. 
Interestingly, at least some of the virtual platforms with 
which courts have experimented since then actually can be 
configured to ensure more privacy than is possible in many in-
person proceedings.
    A related area of concern is security. Even in normal 
times, when physical public access to courthouses essentially 
is unrestricted, courts still routinely use metal detectors to 
screen visitors, and the identity of certain witnesses--usually 
cooperating witnesses in criminal cases--can be shielded from 
public disclosure after appropriate findings by a judge. The 
experience of the current emergency already has helped courts 
improve their ability to secure their electronic portals and to 
prevent harmful or unauthorized access to sensitive proceedings 
or information.
    Public access to the courts is not the only Constitutional 
right implicated by the greater use of virtual technologies. At 
the outset of the pandemic, California's State courts struggled 
with the question of whether a defendant may be arraigned 
remotely on a criminal charge without waiving his or her right 
to be personally present; a majority of the state's Judicial 
Council concluded that even under the present exigent 
circumstances, a defendant may insist on an in-person 
proceeding. Although no published decision has addressed the 
issue, it is extremely doubtful that a remotely-conducted 
criminal jury trial would satisfy the Constitution's right of 
confrontation, at least without the informed consent of 
everyone involved. That said, the current situation has given 
the Federal courts an opportunity to think broadly and 
concretely about the Constitutional requirements and 
limitations relevant to remote proceedings.
    Federal judges also worry about impact of virtual court 
operations on the nature and quality of their own day-to-day 
work. They have expressed concern that lawyers who appear 
remotely will be less candid than they would be in person, and 
that judges' ability to assess parties' and lawyers' non-verbal 
cues such as facial expressions and body language will be 
diminished. Perhaps influenced by their experience with other 
proceedings that occur away from the courthouse, such as 
depositions in civil cases, they fear that lawyers will have 
less incentive to cooperate and Act professionally when not in 
the immediate presence of the judge and each other. For 
appellate judges, who sit on panels with other judges, there is 
trepidation about the impact of virtual hearings on 
collaboration and collegiality. The restrictions resulting from 
the COVID-19 pandemic have created a situation in which the 
validity of these apprehensions is being tested. So far, while 
trial court judges report that some proceedings are more 
amenable to virtual platforms than others, most appellate 
judges seem reasonably comfortable with working and 
collaborating remotely. Some have suggested that continued use 
of virtual hearings would make them more efficient by reducing 
travel between places of holding court.
    The importance of the data that has been and will continue 
to be generated with respect to these questions is not 
academic. For at least a decade, the Federal courts have 
recognized that the costs associated with civil litigation are 
unacceptably high and have skewed access to justice in favor of 
well-funded parties. Thoughtfully designed and carefully 
implemented procedures for virtual proceedings (most likely 
other than jury trials) could reduce that cost substantially by 
limiting the time lawyers and parties spend attending and 
traveling to and from in-person proceedings or waiting for a 
judge to get through a crowded docket. The experience of the 
State courts suggests strongly that parties in cases with 
smaller amounts of money at issue actually may prefer having 
the ability to appear virtually. On the criminal side, 
recognizing that many defendants will choose to waive their 
right to be physically present at hearings that affect neither 
their custodial status nor the disposition of their case, 
virtual proceedings could result in substantial savings in 
inmate transportation costs and a reduced burden on the U.S. 
Marshals and other law enforcement officers who are responsible 
for the security of in-person hearings.
    There also is the overarching issue of public trust and 
confidence in the courts. While the Federal courts consistently 
do better than the other branches of government in public 
opinion polls, a closer look at the polling data shows that 
confidence in the courts has declined in recent years and that 
relatively few people outside the legal profession understand 
what judges actually do. There is a widespread (and mistaken) 
perception that judges simply decide every case on the basis of 
their political inclinations. There also are significant 
differences in the level of confidence among different socio-
economic groups.
    An obvious antidote to such negativity is greater 
transparency. As noted earlier, the Federal courts are a 
strong, value-centered institution with a good story to tell. 
Virtual technologies have potential not only for court users 
but also in the critically important role of public education. 
While it certainly may make more sense to put some types of 
proceedings on line than others, treating courthouse walls as 
an outer boundary for obtaining real-time information is 
increasingly hard to justify in this digital age.
    Finally, despite this generally positive view of the 
potential benefits of greater use of virtual proceedings in the 
Federal courts, I would be remiss if I did not acknowledge the 
fundamental importance of procedural justice. It is important 
that litigants not only be heard but also that to the extent 
possible they feel heard, that they were listened to well and 
treated with respect. As we are learning from the experience of 
the State courts, litigants in some types of proceedings 
actually have a more positive experience with virtual 
proceedings than they have had previously with in-person court 
appearances. There also are indications that a person's 
physical presence at some types of proceedings--for example, 
bail and detention hearings--clearly works to their benefit. 
Some litigants lack the resources to take full dvantage of 
virtual platforms. There are some matters, such as sentencing 
hearings in criminal cases, in which, quite apart from 
Constitutional considerations, the experience of in-person 
communication adds an important sense of immediacy and gravity 
to the event.
    The leadership of the Federal courts should take full 
advantage of the opportunity that its response to the COVID-19 
pandemic has presented. It should conduct a thorough review of 
its experience over the course of the present emergency and Act 
boldly, creatively and thoughtfully on the basis of what it 
learns. I encourage your Subcommittee to explore legislation 
that will encourage and facilitate that effort, including 
authorization of relevant research and extension of the courts' 
authority to conduct and provide public access to virtual 
proceedings.
    Thank you very much for inviting me to be here today.

    Mr. Johnson of Georgia. Thank you.
    Last but not least, Ms. Wasser. Please begin.

                  TESTIMONY OF MELISSA WASSER

    Ms. Wasser. Thank you, Chair.
    Thank you, Chair Johnson, Ranking Member Roby, and Members 
of the Subcommittee.
    Good morning. My name is Melissa Wasser and I am a policy 
analyst with the Reporters Committee for Freedom of the Press, 
a nonprofit organization that has been defending the First 
amendment rights of journalists since 1970.
    Again, thank you for giving me the opportunity to testify 
here today and thank you for your leadership on increasing 
court access throughout the Federal Judiciary.
    Today in my statement I will recommend that Congress 
provide support and guidance to broaden remote access, both in 
audio and video, to Federal court proceedings and ensure that 
these advances in transparency survive both in future crises 
and become a fixture of public access to judicial proceedings 
generally.
    The Reporters Committee has long championed the public's 
constitutional and common law rights of access to judicial 
records and proceedings, and we have been monitoring the 
response of Federal courts around the country to the COVID-19 
pandemic.
    As mentioned by the other witnesses, this pandemic has 
changed the daily operations of Federal courts across the 
country as they strive to protect the health and safety of 
court employees, litigants, attorneys, Members of the 
Judiciary, and the public.
    I would note that press and public access to judicial 
proceedings and court records is no less important during times 
of crisis.
    In response to the ongoing pandemic, many judicial 
proceedings typically held in open court have been held 
remotely. To facilitate public access to these proceedings, the 
Judicial Conference temporarily approved the use of 
teleconferencing to provide the press and public audio access 
to civil proceedings.
    Courts and judges across the country have relied on this 
guidance to provide remote access for the press and public but 
have implemented the policy in different ways.
    The United States Supreme Court also approved public 
access, hearing 10 oral arguments by telephone in May 2020 for 
the first time in the court's history.
    The public has demonstrated an abiding interest in these 
proceedings. Within a few hours of the Supreme Court hearing 
oral argument in two cases involving the President's tax 
returns on May 12th, SCOTUS Blog reported that approximately 
500,000 people tuned into the live stream oral arguments.
    As of yesterday, an estimated 1.9 million people have 
listened to at least one of the Supreme Court's recorded oral 
arguments online, compared to the 50 Members of the public who 
normally make it into the courtroom.
    Similarly, many of the videos posted by the U.S. Court of 
Appeals for the Ninth Circuit, which regularly live stream 
video of its oral arguments even before the pandemic, have 
hundreds of viewers, enough to fill several courtrooms.
    The Reporters Committee urges Congress to consider 
legislation that would permit courts to permanently remove 
barriers for the broadcast or streaming of proceedings in the 
Federal Judiciary.
    Congress should enact legislation to ensure that all 
Federal trial and Appellate courts have sufficient funding to 
continue providing live audio and video access to all public 
proceedings beyond the pandemic, and that courts are able to 
enact revisions to any contrary policy including the Judicial 
Conference's cameras in the courtroom policy.
    This would include passing H.R. 6017, the 21st Century 
Courts Act, which would require live audio and an online 
archive of Supreme Court oral arguments and opinion readings 
along with all Federal Appellate proceedings; H.R. 5645, the 
Eyes on the Courts Act of 2020, requiring cameras in all 
Supreme Court and Federal Appellate court proceedings; and last 
but not least, H.R. 6642, the Court Access Amid the Pandemic 
Act, which would require any oral arguments in Circuit courts 
and District courts be made public in real time via video 
teleconferencing and telephone conferencing, and be permanently 
archived on the internet.
    While Supreme Court justices have expressed concern in the 
past that live audio and video could potentially hurt the 
sanctity and tradition of the court and that the Supreme Court 
is unique and need not follow trends with respect to public 
access in the lower courts, the recent demand for streaming of 
the court's oral arguments last month clearly shows that the 
American public wants to know about its tremendously important 
work.
    According to recently released polls, 83 percent of 
Americans supported regular live stream audio at the Supreme 
Court with nearly 70 percent calling for all courts to allow 
cameras in the courtroom.
    Additionally, public notice of when remote proceedings will 
take place and how Members of the public can observe them is 
crucial. We have noticed that courts have been inconsistent in 
this respect during the COVID-19 pandemic.
    Uniformity in the matter in which courts provide such 
public notice would help remove an obstacle for Members of the 
press and public exercising their rights of access.
    So, in sum, the Reporters Committee believes that increased 
public access to the nation's Federal courts including the 
Supreme Court is, on balance, an important step to promote 
accountability, transparency, efficiency, and an informed 
electorate.
    I would like to thank the Subcommittee for including me in 
this very important conversation surrounding court access and I 
look forward to any--answering any questions that you may have.
    [The statement of Ms. Wasser follows:]

Testimony of Melissa Wasser, Policy Analyst, The Reporters Committee 
                    for Freedom of the Press

    I am Melissa Wasser, a policy analyst at the Reporters 
Committee for Freedom of the Press (the ``Reporters 
Committee''), a nonprofit organization that has been defending 
the First amendment rights of journalists since 1970. Thank you 
for giving me the opportunity to testify. My CV is attached. I 
have a brief statement for the record, which I can supplement 
after the hearing if the Committee seeks additional 
information.

         I. FEDERAL COURTS DURING THE COVID-19 PANDEMIC

    The Reporters Committee has long championed the public's 
constitutional and common law rights of access to Judicial 
records and proceedings, and has been monitoring the response 
of State and Federal courts around the country to the current 
public health crisis. \1\ The pandemic has changed the daily 
operations of Federal courts across the country as they strive 
to protect the health and safety of court employees, litigants, 
attorneys, Members of the Judiciary, and the public. Like all 
public institutions, the Federal Judiciary took proactive steps 
to fight the spread of COVID-19, including limiting public 
access to court proceedings.
---------------------------------------------------------------------------
    \1\FP State and Federal court responses to COVID-19 from the 
Reporters Committee for freedom of the press (www.rcfp.org/covidl9), 
Reporters Committee for Freedom of the Press, http://bit1.y/3dNpQSJO 
(collecting standing orders from all Federal courts (last visited June 
23, 2020).
---------------------------------------------------------------------------
    In doing so, Federal courts also took laudable steps to 
facilitate remote press and public access to judicial 
proceedings. Press and public access to Judicial Proceedings 
and Court records is no less important during times of crisis. 
Indeed, at such times, visibility into the operations of the 
government, including the judiciary, is all the more crucial.
    The Reporters Committee urges the Federal Judiciary to 
continue to ensure that the public's ability to meaningfully 
observe Judicial Proceedings is not curtailed due to 
resbictions on physical access to courthouses both now and in 
future times of crisis. The Reporters Committee further urges 
courts and Congress to preserve these advances toward greater 
transparency once the current crisis is over.
    While our advocacy extends to both civil and criminal 
proceedings, our comments below focus on civil matters given 
the subject of this hearing.
    By attending judicial proceedings, the preplays a key role 
in ensuring ``an informed and enlightened public opinion.'' \2\ 
The public relies on the press to observe at first hand the 
operations of . . . government'' and report on them. \3\ An 
informed public is an essential component of a healthy 
democracy. \4\
---------------------------------------------------------------------------
    \2\ Grosjean v. Am. Press Co., 297 U.S. 233, 247 (1936).
    \3\ See Cox Broad. Corp. v. Cohn, 420 U.S. 469, 491 (1975).
    \4\ See Minneapolis Star & Tribune Co. v. Minn. Comm'r of Revenue, 
460 U.S. 575, 585 (1983).
---------------------------------------------------------------------------
    In response to the ongoing COVID-19 pandemic, many judicial 
proceedings typically held in open court have been held 
remotely--either telephonically or by video conference. To 
facilitate public access to such proceedings, the Judicial 
Conference temporarily approved the use of teleconferencing to 
provide the press and public audio access to civil proceedings. 
\5\
---------------------------------------------------------------------------
    \5\ See Judiciary Authorizes Video/Audio Access During COVID-19 
Pandemic, United States Courts (Mar. 31, 2020), http://penna.cc/7HAG-
L2FB; Judiciary Provides Public, Media Access to Electronic Court 
Proceedings, United States Courts (Apr. 3, 2020), https://pem1a.cc/
VM68-R6N7.
---------------------------------------------------------------------------
    Courts and judges across the country relied on the Judicial 
Conference's guidance to provide remote access for the press 
and public but have implemented the policy in different ways. 
The United States Supreme Court also approved public access 
issuing a pres release on April 13 stating that it would bear 
10 oral argmnents by telephone in May 2020, for the first time 
in the court's history. It explained that ``[t]he Court 
anticipates providing a live audio feed of these arguments to 
news media'' \6\ and media feeds were made available to the 
public.
---------------------------------------------------------------------------
    \6\ See, e.g., Press Release, Supreme Court of the United States, 
May Teleconference Oral Arguments (Apr. 13, 2020), http://perma.cc/
CB72-ESH9.
---------------------------------------------------------------------------

II. REMOTE ACCESS DURING COVID-19 HAS DEMONSTRATED THE INTENSE 
    PUBLIC INTEREST IN THE OPERATIONS OF THE FEDERAL COURTS 
                           GENERALLY

    As noted, courts around the country have provided virtual 
access to proceedings during the COVID-19 pandemic in different 
ways.
    Several judges have affirmatively provided public access to 
proceedings in which the public interest is strong. For 
example, Judge Preska of the U.S. District court for the 
Southern District of New York directed the parties in a civil 
matter to file the dial-in information for a telephonic hearing 
on the public docket. \7\ Similarly, Judge Boasberg of the U.S. 
District court for the District of Columbia granted requests by 
reporters to listen to a telephonic hearing related to a 
coronavirus lawsuit and provided members of the news media with 
dial-in access. \8\
---------------------------------------------------------------------------
    \7\ See Giuffre v. Maxwell, 1:15-cv-7433-LAP, ECF No. 1039 
(S.D.N.Y. Mar. 30, 2020); ECF No. 1041 (S.D.N.Y. Mar. 30, 2020 listing 
dial-in information).
    \8\ See Ann E. Marimow, Federal Courts Shuttered by Coronavirus Can 
Hold Hearings by Video and Teleconference in Criminal Cases, Wash. Post 
(Mar. 31, 2020, 5:59 p.m.), https://wapo.st/2Xlrg6w.
---------------------------------------------------------------------------
    A number of courts have taken a universal approach to 
providing remote access for the news media and public. As Chief 
Judge Howell of the U.S. District court for the District of 
Columbia stated, her court ``is committed to providing the 
public and the media with access to public court proceedings, 
including those held by video or teleconference.'' \9\ Many 
other District courts have made similar commitments, 
implementing policies requiring that all remote proceedings be 
made available to the public. \10\
---------------------------------------------------------------------------
    \9\ See id.
    \10\ See, e.g., MGO 20-13 Suspension of Court Proceedings Effective 
May 1, 2020, U.S. District court District of Alaska (Apr. 21, 2020), 
https://perma.cc/YM2L-NO98 (providing that a toll-free conference line 
will be publicly available for civil and criminal proceedings); In re: 
Public and Media Access to Judicial Proceedings During COVID-19 
Pandemic, U.S. District court, District of Columbia (Apr. 8, 2020), 
https://penna.cc/F99Q-5RTA (providing that video and audio access to 
judicial proceedings will be available for the public); Notice 
Regarding Public Access to Telephonic Hearings During COVID-19 
Outbreak, U.S. District court, Eastern District of Wisconsin, https://
peerma.cc/98CR-TN7M (last visited June 23, 2020).
---------------------------------------------------------------------------
    The public has demonstrated an abiding interest in these 
proceedings. For instance, SCOTUSblog reported that within a 
few hours of the argument session, approximately 500,000 people 
tuned into livestreamed oral arguments before the Supreme Court 
on May 12, 2020, in Trump v. Mazars USA LLP, No. 19-715, and 
Trump v. Vance, No. 19-635. \11\ As of June 23, 2020, an 
estimated 1.9 million people have listened to at least one of 
the Supreme Court's recorded oral arguments online, compared to 
the usual 50 Members of the public who are able to physically 
attend an oral argument in person. \12\
---------------------------------------------------------------------------
    \11\ Amy Howe, Courtroom Access: Where Do We Go From Here?, 
SCOTUSblog (May 13, 2020, 12:37 p.m.), https://pema.cc/THX9F8XJ.
    \12\ SCOTUS Oral Argument Numbers, Reporters Committee for Freedom 
of the Press, https://bit.ly/2TUl5m (last visited June 23, 2020).
---------------------------------------------------------------------------
    Similarly, many of the videos posted by the U.S. Court of 
Appeals for the Ninth Circuit, which regularly livestreamed 
video of its oral arguments even before the pandemic, have 
hundreds of viewers, enough to fill several courtrooms. \13\ 
Guidance and support from Congress would help broaden remote 
access to proceedings at all levels of the Federal Judiciary, 
and ensure that these advances in transparency survive both in 
future crises and become a fixture of public access to judicial 
proceedings generally.
---------------------------------------------------------------------------
    \13\ See United States Court of Appeals for the Ninth Circuit, 
YouTube, https://bit.ly/2TgQf2Y (last visited May 17, 2020).
---------------------------------------------------------------------------

            III. RECOMMENDATIONS AND BEST PRACTICES

 A. Provide Support and Guidance To Allow Courts at All Levels 
 To Broadcast or Stream Live Proceedings in Future Crises and 
                    During Normal Operation

    The Reporters Committee urges Congress to consider 
legislation that would permit the courts to permanently remove 
barriers for the broadcast or streaming of proceedings in the 
Federal Judiciary. Congress should enact legislation to ensure 
that all Federal trial and Appellate courts have sufficient 
funding to continue providing live audio and video access to 
all public proceedings and that courts are able to enact 
revisions to any contrary policy, including the Judicial 
Conference's ``Cameras in the Courtroom'' policy. \14\
---------------------------------------------------------------------------
    \14\ See History of Cameras in Courts, United States Courts, 
https://perma.cc/HM4A-35F9 (last visited June 23, 2020). In some cases, 
District courts incorporate Judicial Conference policies into local 
rules or general orders. See General Order 58, United States District 
court, Northern District of California (Sept. 1.5, 2015), http://
perma.cc/ET6L-JWRV. Even if they are not directlly incorporated, the 
Judicial Conference' policy conclusions are at the ve1y least entitled 
to respectful consideration.'' See Hollingsworth v. Peny, 558 U.S. 183, 
193 (2010) (citation omitted).
---------------------------------------------------------------------------
    These policies have served as a barrier to public access in 
the past. For instance, at least one Federal appellate court 
gave the Judicial Conference's policy against broadcasting 
civil proceedings ``substantial weight'' in holding that local 
rules did not permit a Federal District court judge to allow 
broadcasting of proceedings in a specific civil case. \15\
---------------------------------------------------------------------------
    \15\ See In re Sony BMG Music Entm't, 564 F.3d l, 6-7 (1st Cir. 
2009) (noting that Judicial Conference policies are ``not lightly to be 
discounted, disregarded, or dismissed'').
---------------------------------------------------------------------------
    Congress could provide guidance and support for courts to 
allow the broadcast or streaming of judicial proceedings. That 
guidance and support would empower the Judicial Conference to 
remove this hurdle, allowing District courts to quickly adapt 
to any future emergency necessitating remote proceedings, to 
experiment with finding the best technological means for 
broadcasting or streaming proceedings, and to simultaneously 
realize many of the benefits to public access that have been 
highlighted by the Judicial Conference's recent temporary 
approval in light of COVID-19.
    The Judicial Conference implemented the ``Cameras in 
Courtroom'' policy in 2016, after the conclusion of a four-year 
pilot program that introduced cameras into 14 District 
courtrooms from 2011-2015. \16\ The Federal Judicial Center's 
report on that pilot program found that more than 70 percent of 
participating judges and attorneys favored recording court 
proceedings. \17\ By the end of the pilot program, more judges 
were in support of cameras in the courtroom than against, \18\ 
and most judges and attorneys said they would be in favor of 
permitting video recordings of civil proceedings. \19\
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    \16\ See History of Cameras in Courts, United States Courts, 
https://perma.cc/HM4A-35F9 (last visited June 23, 2020).
    \17\ See Molly Treadway Johnson et al., Fed. Judicial Ctr., Video 
Recording Courtroom Proceedings in United States District courts: 
Report on a Pilot Project 33-34, 55 (2015).
    \18\ Id. at 33-34.
    \19\ Id. at 36, 44-45.
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    Further, many judges and attorneys who participated in the 
pilot program also expressed surprise that the cameras were as 
unobtrusive as they were. \20\ Now that many more judges have 
conducted remote and recorded proceedings as a result of the 
COVID-19 pandemic, Congress should ensure that additional 
funding is available for courtroom technology, specifically for 
live video and audio access of court proceedings at the 
Appellate and trial level.
---------------------------------------------------------------------------
    \20\ Id. at 40-41.
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    Moreover, allowing courts to permanently broadcast and 
stream judicial proceedings will prepare courts to easily 
transition to operating remotely in future national crises. 
Before the pandemic several Federal appellate courts regularly 
provided live audio or video of oral arguments and archived 
those recordings. \21\ In response to the COVID-19 pandemic, 
more Federal Appellate courts, including the Supreme Court have 
turned to live audio of oral arguments. \22\
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    \21\ See News Release, United States Court of Appeals for the 
District of Columbia Circuit, Court to Provide Live Audio Streaming of 
All Arguments at Start of 2018-2019 Term (May 23, 20I8), https://
perma.cc/Y9W9-G65P; Audio and Video, United States Court of Appeals for 
the Ninth Circuit, https://www.ca9.uscorts.gov/media/ (last visited 
June 23, 2020).
    \22\ See, e.g., Press Release, Supreme Court of the United States, 
May Teleconference Oral Arguments (Apr.13, 2020), https://perma.cc/
CB72-ESH9: Advisory, United States Court of Appeals for the Federal 
Circuit, Availability of Live Audio Access to April 2020 Court Session 
(Apr. 1, 2020), https://perma.cc/7F8J-N8JG.
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    For arguments in which counsel for the parties or the court 
themselves participated remotely during the COVID-19 pandemic, 
those appellate courts that regularly livestreamed their oral 
arguments--such as the Ninth and District of Columbia 
Circuits--were able to quickly adapt to remote, livestreamed 
proceedings. A permanent policy permitting the broadcast or 
streaming of proceedings at the District court level would be 
similarly beneficial.

 B. Ensure Uniform and Effective Public Notice of Remote Court 
             Prnceedings During COVID-19 and Beyond

    To ensure meaningful public access, public notice of when 
remote proceedings will take place and how members of the 
public can observe them is crucial. Courts have been 
inconsistent in this respect during the COVID-19 pandemic. Many 
District court policies now make clear that presiding judges 
should provide a publicly accessible link to remote hearings 
and other proceedings on the docket for the relevant matter, or 
upon request. Other courts have posted links to remote 
proceedings on their websites--an approach that has the 
advantage of reaching a broader swath of the public, as it does 
not require a PACER account to access.
    Unfortunately, however, during the pandemic, some members 
of the press have reported difficulty in obtaining information 
about when certain proceedings were to take place or have been 
required to request access to proceedings on a case-by-case 
basis.
    This uncertain terrain poses challenges for journalists and 
other members of the public attempting to observe specific 
court proceedings that, absent COVID-19 restrictions, they 
would have been able to attend in person. The Reporters 
Committee urges Congress to support efforts to ensure that 
whenever proceedings that would normally be held in open court 
must instead be held remotely due to a national crisis or 
otherwise, courts should provide effective public notice of 
those proceedings, including instructions for how members of 
the press and public can easily observe them. Uniformity in the 
manner in which courts provide such notice would remove an 
obstacle for members of the press and public exercising their 
rights of access.

          C. Pass H.R. 6017, H.R. 5645, and R.R. 6642

    Three pending bills would increase public access to the 
Federal courts:
    H.R. 6017, known as the ``Twenty-First Century Courts 
Act,'' would require live audio and an online archive of ``each 
oral argument and opinion reading'' before the Supreme Court be 
``made available for public transmission over the Internet.'' 
\23\ It would also create live audio and archival requirements 
for all Federal Appellate proceedings. \24\
---------------------------------------------------------------------------
    \23\ H.R. 6017, 116th Cong. 5 (2019).
    \24\ Id.
---------------------------------------------------------------------------
    H.R. 5645, known as the ``Eyes on the Courts Act of 2020,'' 
would require that cameras be allowed in all Supreme Court and 
Federal Appellate court proceedings. \25\
---------------------------------------------------------------------------
    \25\ H.R. 5645, 116th Cong. (2020).
---------------------------------------------------------------------------
    H.R. 6642, known as the ``Court Access Amid the Pandemic 
Act,'' would require any oral arguments in Circuit courts and 
District courts be made public in real time via video 
teleconferencing and telephone conferencing and be permanently 
archived on the internet. \26\
---------------------------------------------------------------------------
    \26\ H.R. 6642, 116th Cong. (2020).
---------------------------------------------------------------------------
    While Supreme Court justices have expressed concern in the 
past that live audio and video could potentially hurt the 
sanctity and tradition of the court, and that the Supreme Court 
is unique and need not follow trends with respect to public 
access in the lower courts, the recent demand for streaming of 
the court's oral arguments in May 2020 clearly shows the 
American public wants to know about its tremendously important 
work.
    Further, there is no indication that the livestreaming has 
had a deleterious effect on the court's operations--quite the 
contrary. If anything, the manifest public interest in the 
court's deliberations has had a beneficial effect on how the 
public views access to the Federal Judiciary. According to 
recently released polls, 83 percent of Americans supported 
regular live-streamed audio at the Supreme Court, and nearly 70 
percent called for all courts to allow cameras in the 
courtroom. \27\ Finally, it is worth noting the important role 
that C-SPAN has played in facilitating audio access for the 
public to recent Supreme Court arguments. Just as C-SPAN has 
provided visibility into the operations of Congress, it has now 
taken up that mantle with respect to the Supreme Court. It 
should be permitted to continue to do so.
---------------------------------------------------------------------------
    \27\ See Kalvis Golde, Public Approves of Live Access to Supreme 
Court Arguments, Polls Show, SCOTUSblog (May 21, 2020, 3:20 p.m.), 
http://perma.cc/2GDB-P2C7; see also Poll: 83% of Americans Support 
SCOTUS's Decision to Livestream; 70% Want to Keep Live Audio Post-
Pandemic, Fix the Court (May 20, 2020), https://perma.cc/9G5R-P673.
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    In sum, the Reporters Committee believes that increased 
public access to the nation's Federal courts, including the 
Supreme Court, is, on balance, an important step to promote 
accountability, transparency, and an informed electorate.
    I want to thank the Committee for including me in this 
important conversation surrounding court access and look 
forward to answering any questions you may have.

    Mr. Johnson of Georgia. Thank you.
    I understand that we are having some problems with my 
microphone on the WebEx platform and so we are going to take a 
pause to see if we can work that out.
    I must apologize to everyone. I was pretty strict on the 
30-second tapping at your four minutes and 30-second mark for 
you, Judge Campbell, and also for you, Judge Fogel. I started 
slipping with Chief Justice McCormack and I just totally failed 
with Ms. Wasser. So, I apologize. I couldn't help myself, it 
was getting so good.
    So, at this time, we will take a brief recess so that we 
can fix our problem here. We will recess briefly.
    [Recess.]
    Mr. Johnson of Georgia. The hearing is back, and we will 
now proceed under the five-minute rule with questions. I will 
begin by recognizing myself for five minutes.
    Judge Fogel, Rule One of the Federal Rules of Civil 
Procedure establishes that the rules must be construed to 
secure the, quote, ``just, speedy, and inexpensive 
determination of every action and proceeding,'' end quote.
    How should those three values animate the Federal 
Judiciary's approach to using a virtual--to using virtual 
technologies during the pandemic and beyond?
    Judge Fogel. Thank you, Mr. Chair.
    Rule One is the basis of everything else. That is the way 
it has always been interpreted, and all of the other Federal 
rules need to emanate from those core values in Rule One.
    So, my personal view of this is that the--particularly 
during the pandemic but, hopefully, even afterwards, if we can 
use virtual technologies to honor those values more fully we 
should.
    I think the Federal Judiciary ought to do that, and that is 
really why I have gotten so interested in this issue because I 
think this is not necessarily consistent with the institutional 
conservatism of the Federal courts. I think there is a 
tremendous opportunity here.
    The one caveat I have, really, is in the area of procedural 
justice and the data that we have so far is interesting. As 
Chief Justice McCormack pointed out in some of the proceedings 
in the State courts, people actually are happier to appear 
virtually.
    They don't have to take a day off of work. They don't have 
to travel. The default rates in debt collection cases and 
evictions and things like that have gone down enormously 
because of the availability of virtual proceedings.
    So, that is a good thing. The Federal courts don't do a lot 
of those kinds of cases except in bankruptcy, and the 
bankruptcy judges that I have spoken with are actually quite 
receptive to ways to expand virtual proceedings for many of the 
same reasons, particularly individual bankruptcies.
    I think sometimes virtual technology can help us. I think 
we need to be careful and I say this is not a one-size-fits-all 
situation.
    There are proceedings where I think honoring the values of 
Rule One requires some type of more somber, more solemn type of 
situation, and sentencings come to mind. I think there may be 
constitutional limits when we talk about the confrontation in 
criminal cases.
    Essentially, Mr. Chair, I think there is a tremendous 
potential here for using modern technology to better implement 
Rule One.
    Mr. Johnson of Georgia. Thank you.
    Chief Justice McCormack, would you respond to the same 
question?
    Judge McCormack. Yeah. Thank you very much.
    There are hard questions and I think I agree with 
everything Judge Fogel said. So, let me start there. There are 
definitely areas where there are conflicting values that we are 
going to have to spend some time thinking about, talking about 
with stakeholders, and figuring out our way through.
    Judge Fogel is absolutely correct that there are some 
proceedings for which remote platforms will not be appropriate. 
My court just issued a unanimous opinion this week holding that 
a witness's testimony at a criminal trial by Skype violated the 
defendant's Sixth Amendment right to confrontation.
    There will be proceedings that are not appropriate for 
remote platforms. As everybody knows, a lot of what we do, 
especially in State courts, are not jury trials or criminal 
jury trials.
    The high volume dockets, especially the ones that we are 
going to see a lot of in the coming months because of backlogs, 
like evictions and debt collection cases and other District 
court cases will be not only appropriate for remote platforms 
but will increase participation.
    Judge Fogel is correct that we have seen in jurisdictions 
that are using remote platforms in these high volume dockets 
much higher rates of participation, whiche obviously, enhances 
the first-order values that you are asking about.
    How we proceed in those more difficult cases is something 
we are going to all have to think about and work through.
    We want to be able to give people options because even if a 
litigant has a right to insist on in-person participation there 
will be some that are interested in waiving that.
    So, what we are working on in Michigan is best practices to 
give people options. We have just finished a jury trial by 
Zoom, it was a hypothetical jury trial.
    We had real lawyers and a real judge acting in those roles, 
but we had a member of our staff playing the criminal 
defendant.
    We had volunteers, family members and law students, play 
the jurors and we did it so, we could develop best practices 
for the litigants who are interested in proceeding that way 
rather than waiting until they could do it safely.
    There is a lot to figure out. I want to come back to where 
I started, which is it is a tremendous opportunity for us to 
figure out how we can do a lot of what we do better, more 
transparently and more accessibility.
    Mr. Johnson of Georgia. Thank you. My time has expired.
    I now call upon my colleague, Congresswoman Roby, for five 
minutes.
    Ms. Roby. Again, thank you all to our witnesses for being 
with us today.
    Judge Campbell, during the pandemic there has been an 
increase in the use of technology that we have discussed here 
today by Federal courts and the general public alike.
    However, there are valid security concerns surrounding the 
use of technology platforms such as Zoom.
    Judge Campbell, if you will, tell the Committee how have 
Federal courts and the Judicial Conference worked to address 
those security concerns?
    Judge Campbell. Thank you, Congresswoman.
    There has been a significant increase in the use of video 
and audio technology during the pandemic, and I agree with 
Judge Fogel and Chief Justice McCormack that it is a very 
valuable learning experience.
    In fact, it was the Federal courts that went to Congress 
and asked for the ability to use audio and video proceedings in 
criminal cases where it wasn't authorized under the existing 
rules.
    There has been concern about the security of video 
conferencing platforms. Technical experts at the Administrative 
Office of the Courts have worked with IT specialists in each of 
the individual District and Circuit courts.
    They have vetted different video platforms for security, 
for the ability of outsiders to hack or disrupt proceedings, 
and the Administrative Office has made recommendations to local 
courts as to which kinds of video platforms were the most 
secure and ought to be preferred in those proceedings and I 
think the courts have been using those.
    I think the technology platforms are improving as the 
pandemic goes on. We have been very conscious of security and 
the technology experts within the Federal courts have been 
quite active in ensuring that the tools that are used are 
secure.
    Ms. Roby. So, while the COVID-19 pandemic may have 
necessitated the use of technology in some instances, some 
commentators and there has been arguments made here today that 
both the Federal and State courts alike should be using 
technology in the courtroom even after the pandemic passes.
    However, as I mentioned in my opening statement and has, 
again, been brought up since then, not every jurisdiction may 
be equipped to administer remote technology.
    Again, I have already mentioned this, but some 
jurisdictions may have unreliable Internet connection or poor 
access to quality broadband.
    So, Judge Campbell, I am going to give you an opportunity 
as well to weigh in on this issue.
    Judge Campbell. Just a few thoughts in response to that, 
Congresswoman.
    We have heard of and are aware of the fact that there are 
jurisdictions where the ability to connect to the necessary 
locations has been limited by technology.
    We have heard that is particularly true where Federal 
detainees are housed in local jail facilities or detention 
facilities that have not had video conferencing capability or 
have had limited telephone capability.
    The courts have worked with those facilities so that the 
video and teleconferencing proceedings in criminal cases could 
go forward. Progress has been made.
    There are still clear limitations by matters external to 
the court, such as, the availability of broadband or the 
funding of a local facility where individuals are housed.
    I will note that I understand an important part of this 
proceeding focuses on civil cases, and before the pandemic 
arrived Federal judges were using technology in civil cases 
relatively frequently to conduct hearings for case management, 
for oral arguments.
    It is a very common thing in my court for participants to 
call in to proceedings if they are from out of town, and a lot 
of pretrial work in the civil side was already done by 
technology.
    Obviously, we are doing a lot more of it now, and I agree 
with the points made by the speakers already that there is much 
we can learn from the experience we are having in the pandemic.
    Ms. Roby. I would just say, given all of these limitations, 
we have got to ensure that courtrooms are ready to reopen for 
those who may not be able to participate in remote Judicial 
proceedings. So, if you want to weigh in on that as well.
    Judge Campbell. I agree with that, and the question of how 
to reopen courtrooms and how to conduct proceedings carefully 
is a very difficult one, a critical one.
    Every District court in the United States is investigating 
and developing policies for how you bring in 60 people for jury 
selection, how you then seat a 12- or 14-person criminal jury 
that will be together for two weeks, and how in that process 
you keep the jurors safe, how you socially distance, how you 
limit exposure to a lot of things in trial that would normally 
be presenting health risks.
    Who do you screen at the front, how do you determine a set 
criteria for who is allowed into the courthouse. All of those 
issues are being explored.
    Policies are being developed. We want to reopen the 
courtrooms as soon as possible consistent with public health, 
and courts are working on the basis of their local 
circumstances to develop those policies.
    Ms. Roby. I have gone over my time, Mr. Chair. I appreciate 
that.
    I would just ask that this Subcommittee be kept informed 
every step of the way about what this looks like. Obviously, it 
is important for us to know the things that the Judiciary is 
putting into place as it relates to best practices, moving 
forward, and understanding the urgency as well as these cases 
continue to backlog.
    So, thank you, Mr. Chair, for letting me go over. I yield 
back.
    Mr. Johnson of Georgia. Thank you.
    Next, the gentleman from Arizona, Mr. Stanton, for five 
minutes.
    Mr. Stanton. Thank you so much, Mr. Chair, for hosting this 
critically important hearing and thank you for the outstanding 
witnesses for being with us here today.
    COVID-19 has presented challenging hardships to our Federal 
court operations. Maintaining fair and equitable access to our 
justice system continues to be of utmost importance, and I 
commend the judiciary for being innovative in its response.
    However, we must be vigilant that the courts are 
considering how its adaptations are affecting underserved 
communities. One of these critically important communities is 
people living in Indian Country.
    My home State of Arizona is fortunate to have a significant 
Native American presence with 21 tribal nations in our state. 
Sadly, COVID-19 has hit these communities hard.
    For example, the Navajo Nation has one of the highest per 
capita rates in the country, which has resulted in curfews and 
lockdowns. With a high infection rate coupled with a limited 
Internet access and vast rural areas, I am concerned that 
people living in Indian Country are experiencing unique 
difficulties in accessing the Federal courts.
    Given the significant presence in Indian Country--the 
significant Federal presence in Indian Country, I want to ask 
specifically how the judicial system is accounting for 
challenges present there. I want to ensure that their needs are 
thoughtfully, thoroughly, and equitably addressed.
    I have a question for Judge Campbell. You have been a judge 
in Arizona for nearly two decades and have presided over a 
variety of areas.
    We are fortunate that someone with your experience and 
expertise serves on the Committee on Rules of Practice and 
Procedure, and I notice that both the Committee on Federal 
Judiciary COVID-19 Task Force have representatives from 
important stakeholders.
    Do you know if the Federal Judiciary COVID-19 Task Force or 
the Committee on Rules of Practice and Procedure have tribal 
representation?
    Judge Campbell. Thank you, Congressman Stanton, and thank 
you for your support of the courts in Arizona.
    There is not, to my knowledge, tribal representation on the 
committees within the Federal Judiciary that oversee the rules 
of practice and procedure.
    Those committees consists of Federal judges, academics, and 
practicing lawyers who are appointed for a term of years to 
work on the committees, and I am not aware of a Native American 
who is present on those committees.
    The AO Task Force consists of Chief District Judges, Court 
Unit Executives, a Representative of the Federal Public 
Defenders, a Representative of the U.S. Attorney's Office, a 
Representative of the U.S. Marshalls and the General Services 
Administration.
    I know that task force has reached out and sought input 
from courts around the country on issues that they are dealing 
with.
    As you know, Congressman Stanton, our Chief Judge in 
Arizona, Chief Judge Murray Snow, is very conscious of the 
needs of Indian Country. He has been communicating with the 
Administrative Office about those needs.
    He has developed some innovations for the Federal courts to 
reach out to Indian Country including holding jury trials on 
the Navajo reservation, which has happened under his 
leadership.
    Of course, we have as a member of our court a Federal 
District Judge, Diane Humetewa, who is a Member of the Hopi 
Tribe, and brings that unique perspective to our court and to 
the Federal courts, generally.
    So, my hope is that the courts that deal with Native 
American populations will be active as I believe ours is in 
helping the Federal court system understand those needs and 
serve them better.
    Mr. Stanton. Thank you for that answer, and I do agree that 
Judge Snow is very concerned about those issues. I would ask 
that you would consider advocating for adding a tribal 
representative to both the task force and the committee.
    I think that would be--the communities, our country would 
be better served if that was the case, particularly for the 
unique role that Federal courts play in Indian Country and 
Arizona around the country.
    Then one final question for Judge Campbell or anyone else. 
What work is being done to ensure Native American 
representation on juries, particularly those that originate in 
Indian Country?
    Judge Campbell. Well, I can respond to that briefly, 
Congressman.
    In Arizona, when we hold jury trials in criminal cases or 
civil cases, we divide the State into three different jury 
districts.
    We have a northern Arizona jury district that encompasses 
the Navajo reservation and a number of other Native American 
Lands, and when an event occurs in northern Arizona, whether it 
is a civil or a criminal matter, the jury is drawn from that 
northern Arizona area specifically for the purpose of including 
everybody within those areas including Native Americans.
    So, it is typical when we have cases that arise in northern 
Arizona we will have Native American Members of the jury.
    I think there is a need to increase their participation, to 
reach out to those communities and encourage their 
participation, and that is something that Chief Judge Snow is 
doing quite actively and Judge Humetewa is also.
    Mr. Stanton. I think I am out of time so I will yield back.
    Thank you, Mr. Chair.
    Mr. Johnson of Georgia. Thank you.
    The gentleman from Virginia, Mr. Cline, is recognized for 
five minutes.
    Mr. Cline. Thank you, Mr. Chair.
    The COVID-19 crisis has caused many of us to change the way 
we perform everyday duties. Whether it is teleworking, Zoom 
calls, or wearing masks in public settings or ordering everyday 
essentials online, our way of life has changed drastically in 
just a few short months.
    For our judiciary system, the challenges that these changes 
have caused have been monumental, with Federal and State courts 
grappling with how to best continue their essential operations 
while keeping everyone involved safe.
    It is my understanding that the Administrative Office of 
U.S. Courts has sought to assist the Federal Circuit courts in 
their response to the crisis by issuing guidance and acting as 
a repository of information, and for that I am very grateful 
for the leadership role that the AO has undertaken.
    Although many Federal and State courts have closed 
courthouses and stopped court proceedings, we must remain 
mindful of the rights of those who come before our court system 
seeking justice.
    One of the ways that we, in Congress, have sought to 
support our court system during this time is through passage of 
the CARES Act, which permits the Federal Judiciary to conduct 
criminal proceedings via audio or video conference subject to 
certain constraints.
    For example, if the Judicial Conference finds that the 
COVID-19 emergency will materially affect the functioning of 
Federal courts, the Chief Judges of Federal District courts may 
authorize the use of video teleconferencing, or telephone 
conferencing if video teleconferencing is not reasonably 
available for criminal proceedings in certain instances.
    So to assist with these changes, the CARES Act appropriated 
a total of $7.5 million to the Federal Judiciary to address 
immediate information technology needs and increased testing 
and treatment costs for the pretrial and probation programs: 
$500,000 to the Supreme Court, $1 million to defender services, 
$6 million to Federal courts and other judicial services to 
prevent, prepare for, and respond to coronavirus.
    While I support transparency in our government, I do remain 
concerned about the impact that cameras in the courtroom could 
have on proceedings.
    However, as an advocate of same-day audio, I was thrilled 
to see the Supreme Court allow for real-time audio of their 
oral arguments this sessions. This is a worthy reform to our 
Federal Judiciary and I hope that it will remain in place long 
after the coronavirus crisis ends.
    I thank the witnesses for their time today to discuss the 
challenges that the coronavirus has caused, and I would like to 
ask Judge Campbell, due to the pandemic, many courts have had 
to suspend or stop jury trials in light of pressing health 
concerns.
    It is my understanding that the Judicial Task Force for 
COVID-19 convened a working group to consider how grand juries 
and juries may safely reconvene as courts reopen.
    What are some of the most important considerations for 
courts to considers as they restart grand jury and jury trials?
    Judge Campbell. Thank you, Congressman.
    The subgroup of the AO Task Force that you mentioned 
produced a booklet of 10 or 12 single-spaced pages of 
recommendations on the kinds of steps that courts can take to 
ensure the health and safety of jurors when they return to the 
courtroom.
    It is really very detailed. In fact, I reviewed it 
carefully because I had a jury trial scheduled to start next 
Monday. We had postponed it in light of the rising infection 
rates in Arizona.
    It is a very detailed description of the measures that 
should be taken to ensure that jurors aren't infected when they 
come for jury service, even down to detail of how many people 
should be in an elevators, where you should put markings on the 
floor for jurors to stand, where you should put markings on the 
bench in the courtroom for jurors to be six feet apart, the use 
of Plexiglas screens.
    It is a very detailed document. Equally important, I 
believe, is that Federal and State courts as well be able to 
assure jurors that when they come to court their health will be 
protected.
    So, every Federal court has been directed to prepare a 
public notice--ours is about a page and a half--that sets forth 
in detail the steps we will take to ensure the jurors' safety 
when they come to our courthouse, and that goes out with every 
jury summons so the jurors know we are taking those steps and, 
hopefully, can ensure their safety when they come.
    There have been two jury trials held recently, one in the 
Northern District of Texas and one in the Eastern District of 
Texas. They were held last week.
    The procedures followed. The precautions taken have been 
shared with the Federal courts generally, and we will continue 
to watch and learn as we go through the process of resuming 
jury trials.
    Mr. Stanton. Thank you.
    Mr. Chair, I yield back.
    Mr. Johnson of Georgia. Thank you.
    I will now recognize the gentleman from California, Mr. 
Correa, for five minutes.
    Mr. Correa. Thank you, Mr. Chair, for holding this most 
important hearing.
    As I listen to our witnesses--and again, thank you very 
much for being here today. As I listen to your testimony I am 
reminded of that saying that justice denied by delaying 
justice. I am also thinking back to my experience in 
government, which is government usually manages by crisis. It 
is very difficult for government to manage beyond the next day.
    I am also thinking about 9/11. We never really went back to 
being the same after 9/11. As I think about COVID-19, I suspect 
and I hope that we will not go back to business as usual after 
COVID-19.
    With that being said, as I think about your operation 
today, essentially, assuring that our court systems work well, 
assuring that we have due process, we talk about a study. We 
talk about studying what we are doing today.
    Yet, I don't think your branch of government has the luxury 
of time to study the issue. I think right now--I suspect that 
right now your local courts, courts at all level, are managing 
this crisis by adopting, by changing.
    So, I would say that we don't have the time to study the 
issue. Our libraries are full of studies that after those 
studies are concluded they are just put away and we move on to 
the next crisis.
    I would ask all of you could you begin to give us a list of 
those best practices that are being implemented right now that 
will change for the better the way our court system actually 
operates.
    Ms. Wasser, I want to say that I was very delighted to hear 
that public participation, public interest in the judiciary 
system has actually gone up. If there is a silver lining in 
this crisis, it is that people are watching proceedings today 
online.
    Chief Justice McCormack, you mentioned the word dentists, 
which brought back some very negative emotions to my psyche, 
and I am thinking to myself probably most Americans would look 
at a courtroom the same way. I don't want to go do jury duty. I 
don't want to go near that building, just like you would with a 
dentist.
    So, again, I ask all of you in general what are the best 
practices that you are implementing right now that we could 
advance on that could be permanent to make sure we better the 
way courts operate in the United States?
    Open it up for an answer.
    Judge Fogel. May I--
    Mr. Correa. Yes.
    Judge Fogel. This is Judge Fogel. Congressman, I think that 
is an excellent question.
    One of my answer to your question about study, because I 
was probably the person who emphasized that the most, is not 
something that would be done over years of time and sit on a 
shelf.
    I think you are quite right that there is urgency here. I 
think one of the real assets that the Federal courts have is 
they have resources to look carefully at what they are doing 
and produce exactly the type of list of best practices that you 
are asking for.
    I don't think it can be done on the fly, but I think it can 
be done relatively soon through the type of applied research 
that the Federal courts are very good at.
    In fact, the agency that I had the privilege of directing 
for seven years at the Federal Judicial Center that is what it 
does. That is one of its two major missions. One of them is 
education for judges in court management and the other is 
applied research.
    I think working with the committees and the task forces 
with Judge Campbell, the Task Force, the rest of the Judicial 
Conference, that is exactly the type of reflective product to 
come out, and I think it could come out in a matter of months 
rather than a matter of years and I think it is exactly the 
type of guidance that we need: What have we learned, what are 
the best practices, what should we keep, and what should we 
stop doing.
    That is exactly the right questions and the good news is 
that the Federal courts actually have an ability to do that 
type of applied research.
    So, that is what I would say.
    Judge McCormack. Let me jump in as well. I also appreciate 
the question and it is an excellent question.
    I agree with you that a lot of people view courts like 
dentists' office. They are not usually looking forward to going 
there.
    I always say usually when people are in court something 
traumatic and stressful is happening in their lives. Not 
always. We do have adoptions. Sometimes people need to get 
married in courts. That can be fun.
    Usually something traumatic and stressful is happening, and 
so how the courts treat people, going back to my opening, is 
the whole ballgame.
    I always say we are kind of failing trust in government. 
How we treat the 3 million different, the 6 million people who 
need their cases resolved in our courts every year gives us an 
opportunity to really grow faith in government or erode it, 
depending on what we do.
    So, the best practices that we are learning right now we 
actually are immediately putting out there. Let me refer you to 
the National Center for State courts' post-pandemic. It has got 
a big long name--Rapid Response Technology Innovation 
Committee. I don't even know if that is the right name.
    I co-Chair it with the talented court administrator from 
the State of Texas, David Slayton, and we have already produced 
a series of best practices, best technologies, and put it out 
there for State courts across the country, and we meet weekly 
in three subcommittees to update it.
    We are actually doing exactly what you think we should be 
doing, I want you to know, and we are also doing it in a way 
that is not necessarily perfectly comfortable for judges and 
lawyers.
    I always say, we were trained to move slowly. We are small 
conservative for lots of normative cultural and important 
reasons, frankly.
    Yet, we are right now having to Act like entrepreneurs, and 
it is for the benefit of the people of the country who need to 
use our courts to resolve really important disputes in their 
lives, often without lawyers.
    The transparency we are seeing from remote proceedings, the 
accessibility we are seeing from remote proceedings, and the 
way in which people feel less intimidated and more able to 
participate are easy answers to your questions.
    I think the harder answer is we have to continue to be 
capturing those best practices and sharing them widely.
    Thank you for the question. We are working on it.
    Mr. Correa. Thank you, Mr. Chair. I am out of time.
    Mr. Johnson of Georgia. Thank you. We will embark upon a 
second round of questions and I will begin by asking Ms. Wasser 
that you note in your testimony that courts have taken 
different approaches to adopting the Judicial Conferences 
guidance on providing access to public and the media.
    What issues have members of the press run into under this 
disparate court by court approach?
    Ms. Wasser. Sure. Thank you, Chair, for the question.
    So, at the beginning of the COVID-19 pandemic, we were 
seeing some disparities with reporters noting how they could 
receive public notice of remote proceedings, whether that be a 
link posted on their website, which would be the most publicly 
accessible, or trying to figure out how, outside of being noted 
on a pacer on the docket to call in to these proceedings.
    There were some instances where, I believe it was at the 
District court level, there was remote access made available 
for the attorneys and the litigants, but not a member of the 
public line or not a press access line.
    I would say in response to Representative Correa's 
question, this would be for a best practices standpoint an 
opportunity to make notice more widely available.
    This is something as easy as posting a link on the front of 
a court website to make sure that members of the public and 
members of the press are able to access it and that would also 
help increase public participation.
    I mean, also seeing this as a possible opportunity for 
long-term investment, Congress has an opportunity here to 
provide support and guidance through funding, maybe through the 
appropriations process, to allow all levels of the Federal 
courts to broadcast and live stream their proceedings while 
also making notice more widely available.
    I will note Ranking Member Roby's concern about her 
district and lack of access to broadband, and I appreciate and 
I understand that concern.
    A potential fix there would be the ability to, if they 
can't stream video or even stream audio without the access to 
broadband, that they provide a dial-in number, giving members 
of the press and the public the opportunity to be able to 
access the proceeding during remote times and, as courthouses 
start to reopen, this would help prevent someone who is 
asymptomatic from coming into the courtroom but still being 
able to access the proceeding at home.
    So, I think there are real opportunities here to move 
forward, especially on the notice front.
    I would also mention, I know a couple people have mentioned 
studies. We can look and see what the courts are doing now. All 
of the circuit courts except the Sixth Circuit have live audio 
available as of yesterday. So, moving forward, we can see what 
has worked with live audio and start to take incremental steps 
from there.
    Mr. Johnson of Georgia. Yes, thank you.
    We are only limited by the imagination of the judicial 
branch in terms of its requests for funding for any particular 
programs that it may deem appropriate for the Judicial branch. 
We are only limited in terms of that imagination.
    Ms. Wasser and Chief Justice McCormack, if you would 
address this issue. What message to the public would the 
Supreme Court send if it decided to stop broadcasting its 
proceedings and what message would the court send if it 
expanded public access by allowing live video, not just audio, 
of its proceedings?
    If I might impose upon you, Chief Justice McCormack.
    Judge McCormack. Yeah, thank you for that question.
    I am on record as being in favor of live streaming 
proceedings at the Supreme Court as well as in the Courts of 
Appeals.
    My court, the Michigan Supreme Court, has been live 
streaming our proceedings for many years, from long before I 
joined it in 2012.
    The reason we do it is because Michigan is a big State and 
people who live far away from Lansing, but are citizens of our 
State have, in our view, the right to see what their court is 
doing and how they are doing it.
    It feels, to me, like it builds trust and confidence in our 
branch, which, as I said, is the only currency we have. So, 
transparency is the way to build that and I think it only 
increases the confidence in the court's work.
    One hundred percent of the time 50 percent of the people 
don't like our decisions. We usually end up disappointing 
everybody by the end of a term.
    If they believe that we are operating fairly, that we are 
listening, that we are treating everybody with dignity and 
respect, they will have faith in our outcomes, whether it is 
their favorite outcome or not, and that is the big benefit of 
transparency.
    I will say that some of the cases we hear in live stream, I 
think the only person watching is my dad, and he just wants to 
see me. He lives in North Carolina.
    So, they don't all have the same amount of public interest. 
They should all have the same accessibility to everybody who 
lives in our State and, frankly, everybody who lives anywhere.
    As I said, I believe it builds trust and confidence in the 
work the courts do, and that is the whole ballgame.
    Mr. Johnson of Georgia. Thank you.
    Ms. Wasser, if you would respond.
    Ms. Wasser. Yes, thank you, Chair.
    I would echo the sentiments of the Chief Justice. I think 
the Supreme Court, if they do decide to extend a video or even 
live audio access, it promotes a message of transparency.
    It helps extend the gains of transparency that have been 
made due to the situation of this pandemic. Increasing public 
access is something that is extremely important to help promote 
accountability and promote transparency.
    I think they also send a message of strengthening our 
democracy. As the Chief Justice mentioned, being able to view 
these proceedings or listen to them via audio would send a 
strong message that the public does have an interest in what 
the court is doing.
    We have seen in the past that justices have repeatedly said 
there is no demand for this or they don't believe that people 
would really understand this part of the process with oral 
argument.
    What we have seen from the 10 oral arguments being live 
streamed in May was that simply isn't true. People want this 
access.
    They want to know what the nation's highest court is doing, 
and it helps better inform their decisions moving forward in 
how they decide to trust and build confidence in the judiciary.
    I think it is very important, moving forward, that they 
continue to extend this access. I believe they have also made 
comments about lawyers potentially grandstanding, that is why 
they didn't even want audio.
    In my home State of Ohio, I know the Ohio Supreme Court has 
been also live streaming and broadcasting their oral arguments, 
and I believe it only happened once in 15 years that a lawyer 
has grandstanded for the camera and the justices told him to 
stop and they haven't had a problem since.
    We can look back on the audio files of those 10 cases in 
May that there was no grandstanding. There were just people 
talking through these cases. It was easy to understand for the 
American public and it really builds trust in the Federal 
Judiciary.
    Mr. Johnson of Georgia. Thank you. I will now recognize the 
gentlelady from Alabama for her questions.
    Ms. Roby. Again, thank you all for your testimony here 
today and your willingness to answer our questions.
    Judge Campbell, the Judicial Conference of the United 
States submitted a letter to Members of Congress on April 28th 
of this year with a long list of legislative proposals in 
response to COVID-19.
    He very specifically submitted by the Judicial Conference 
is to convert temporary judgeships into permanent judgeships. 
So can you briefly discuss this proposal and describe how it 
would help the Federal Judiciary respond to the ramifications 
of the pandemic?
    Mr. Chair, I will just note this is already part of the 
record because it is part of Judge Campbell's testimony.
    Judge Campbell. Yes, thank you, Congresswoman.
    There are two parts to that request that have been made. 
One part focuses on bankruptcy court. We are expecting that 
there will be a surge in bankruptcy filings because of the 
unfortunate economic outfall of the pandemic.
    There are 14 temporary bankruptcy positions that are 
identified by the courts and we request that those be made 
permanent positions. That will allow additional and permanent 
judicial resources in those districts where they are needed.
    There are also temporary Federal judgeships, which--some of 
which have been temporary for a long time. One in my district 
has been temporary for 17 years.
    Those typically are extended one year at a time and the 
courts don't know whether they will be extended or not, and if 
they are not extended and the judge retires then the position 
is not filled.
    So, even courts with burgeoning and demanding dockets face 
the prospect of actually losing judges if a temporary judgeship 
is not extended.
    So, that is why we have asked that in these areas of great 
need districts that are very busy and bankruptcy courts that 
are going to be very busy, the Congress make permanent these 
judgeships which currently are only temporary.
    Ms. Roby. I appreciate that.
    There is other legislative proposals in this letter. So, I 
just want to give you an opportunity if there is something that 
you would like to highlight for us in the time I have 
remaining.
    Again, thank you very much for your testimony, all of you 
here today.
    Judge Campbell?
    Judge Campbell. Thank you.
    I don't think that I will attempt to identify any 
particular of the 17 proposals. There are a wide range of 
issues that are addressed. They have all been developed in 
consultation with courts around the country.
    A number of them affect Federal public defenders and their 
needs which are, obviously, critical during the time of the 
pandemic.
    So, I would simply request that please review and consider 
all of them. The Conference considers them all important.
    I would like to add one point in response to what 
Congressman Correa asked a few minutes ago about best 
practices.
    I mentioned that there is a location on the Federal courts' 
Intranet where courts can go for information, and one of the 
categories of information on that Intranet are court orders and 
local practices--best practices, in effect--and if a judge goes 
there or a district goes there on the Intranet the judge can 
find, literally, hundreds of orders from courts around the 
country that reflect the best practice, and the Administrative 
Office is also trying to synthesize information from courts and 
get those out.
    So, there is a very conscious effort to learn from each 
other and to learn from the State courts as we go through this 
unique time.
    Ms. Roby. Thank you.
    Mr. Chair, I yield back.
    Mr. Johnson of Georgia. Thank you. I now recognize the 
gentleman from Virginia for five minutes.
    Mr. Cline. Mr. Chair, I just want to thank the Witnesses 
for participating. I don't have any further questions at this 
time.
    I will yield back.
    Mr. Johnson of Georgia. Thank you.
    The gentleman from California is now recognized.
    Mr. Correa. Thank you, Mr. Chair.
    I, first, wanted to clarify. We talk about access to the 
courts, and Chief Justice McCormack, you mentioned being on the 
record to supporting video live streaming of your courtroom in 
the appeal courts.
    What about the lower courts? Do you feel the same way about 
having those live streamed?
    Judge McCormack. I do, which is not to say that there 
should not be exceptions. There are exceptions right now in 
public courtrooms for when we do not provide access.
    You can guess what those are. Protecting witnesses who need 
protection is something we have a sophisticated process for 
doing in our courtrooms throughout the country, and we can do 
it in our virtual courtrooms as well, and we should.
    For routine matters, live streaming processes in courtrooms 
including trial court rooms should be the norm. Again, it 
builds confidence.
    In Michigan, you can go on the Michigan Supreme Court 
website. You can click on the virtual courtroom directory. You 
can then click on any county in the State, see which courts are 
operating, and then click on the live feed, which is a YouTube 
feed, and watch those courts operate.
    The press can do it. The public can do it. Family members 
of litigants who are immuno-compromised and can't make it to 
court can do it.
    It is, in my view, really important to building confidence 
in the work that this branch does and, like I said, I believe 
when we build confidence in our work we are really building 
trust in government.
    Mr. Correa. Totally agree.
    Judge Campbell, the same question to you. Any thoughts 
about local courts having those proceedings online and viewed 
by the public?
    [Pause.]
    Judge Campbell. Okay. Does that work?
    Mr. Correa. Yes.
    Judge Campbell. All right. Thank you, Congressman.
    As you know, it has been the policy of the Judicial 
Conference since the mid-1990s not to live broadcast District 
court proceedings and there is actually a Federal Rule of 
criminal procedure that addresses that as well.
    The policy of the Judicial Conference has been to allow 
Courts of Appeals to make decisions on what they will live 
stream, and as Ms. Wasser indicated a few minutes ago, many of 
them do that as a routine basis and most of them are doing it 
now during the pandemic.
    That has been the policy and remains the policy of the 
Judicial Conference. I think it is also absolutely true, 
though, that we are learning from the pandemic. Judges are 
doing more video and teleconferencing proceedings.
    I agree with Judge Fogel there is much to be learned from 
that process. The policy that exists now is not to allow 
broadcasting from trial courts.
    Mr. Correa. Same question to you, Judge Fogel.
    Mr. Johnson of Georgia. If you will unmute.
    Judge Fogel. Thank you. Thank you very much, Congressman 
Correa. I was a District Judge for 20 years, and before that I 
was on the State court in California where the default was the 
opposite, where everything was presumed to be open and capable 
of being transmitted.
    Frankly, I agree, particularly on reflection, having been 
out of the judiciary for a couple years, with what Chief 
Justice McCormack said. There are situations where you have to 
be careful--privacy, cooperating witnesses, things like that, 
where it is just not appropriate.
    In general, I think sunshine is a good thing, and the 
Federal courts have been forced to do something which is 
outside their comfort zone as a result of COVID and that is 
exactly the type of thing that they should take the opportunity 
to think about again.
    The outcome, of course, is up the Judicial Conference and 
it is up to them to decide what policy they think makes sense. 
Now, we have some actual data as to what has occurred when 
these proceedings have been open.
    It is something that ought to be looked at and reflected 
upon and thought about in terms of what we do, going forward.
    Mr. Correa. Ms. Wasser, the same question.
    Ms. Wasser. Sure. Thank you, Congressman.
    I would echo the sentence made by my fellow witnesses. 
There should be a presumption of openness here. I agree with 
the other witnesses that there would be some situations in 
which District courts would need to take into consideration 
privacy of witnesses.
    District courts could also keep broadcast restrictions in 
place to stop the rebroadcasting of video access. I would note 
that there was a pilot program sent by the Judicial Conference 
in 14 District courts over four years. I believe, in 2011 to 
2015, and the results of those show that a lot of the 
participating judges and attorneys actually favored court 
proceedings--more than 70 percent, in fact.
    At the end of that pilot program more judges were in 
support of cameras in the courtroom than against and most 
judges and attorneys said they would be in favor of permitting 
video recordings of civil proceedings. We note that in our 
written testimony that we submitted.
    Another thing to note at the District court level with that 
pilot program was that many judges and attorneys were actually 
quite surprised that cameras were as unobtrusive as they were.
    So, moving forward, I don't see any problem with increasing 
access at the District court level, although I would ask that 
Congress provide that support and guidance to the Judicial 
Conference and work with the Judicial Conference to possibly 
amend the cameras in the courtroom policy because other 
witnesses have mentioned and you, Representative, have 
mentioned we are not going back to our old normal and this is 
the new normal.
    Sunlight is the best disinfectant, and regardless of 
whether there is a pandemic or not, we would advocate that you 
do what is most accessible for the American people.
    Mr. Correa. Thank you very much. I thank the witnesses.
    Mr. Chair, I yield.
    Mr. Johnson of Georgia. Thank you.
    The Chair will now recognize the gentleman from Ohio, Mr. 
Chabot, for five minutes.
    Mr. Chabot. I thank Chair, and I want to thank the 
witnesses for being with us, if not in person at least through 
this procedure today.
    While this hearing is focused on how Federal courts have 
handled their work during the pandemic that has kept most at 
home, it provides a great opportunity to raise the importance 
of allowing cameras in courtrooms to maintain or improve public 
access to court proceedings.
    Earlier in my tenure as a Member of Congress and a Member 
of this Committee, I introduced legislation, the Sunshine in 
the Courtroom Act, and in fact, I believe, along with now 
Senator Chuck Schumer on this Committee we introduced it 
together and we have introduced it with other Members over the 
years, and it would have allowed Federal judges to permit audio 
and visual coverage of court proceedings in all Federal 
courtrooms at the discretion of the judge. If a judge didn't 
want to do it then it didn't have to happen. Overall, it would 
be available.
    In this Congress, Chair Nadler and I introduced H.R. 5645, 
the Eyes on the Courtroom Act. This important legislation will 
require that cameras be allowed in all Supreme Court and 
Federal Appellate Court proceedings unless a Presiding Judge 
determined that permitting cameras would violate the due 
process rights of a party or would otherwise not be in the 
interests of justice.
    We, as Members of Congress, have our proceedings televised 
on C-SPAN, for example, streamed on YouTube and on each 
Committee website. In fact, this very Subcommittee hearing 
today is being streamed right now.
    Most of our official actions can be reviewed by anyone 
including by judges. In my opinion, the same should be true of 
our Federal Judiciary.
    While all of our activities are recorded and preserved for 
review by the public, Federal judges who judge our decisions, 
largely do so in private and that is despite the fact that 
nearly all of states, including my State of Ohio, allow cameras 
in their courtrooms without incident or spectacle, although 
there were lots of predictions early on of all of the terrible 
things that would happen and, for the most part, they have not 
happened.
    As such, I think the Federal courts should be brought into 
the modern world as well. An informed citizenry is essential to 
our constitutional system of checks and balances and I think 
the American people deserve an opportunity to see how our court 
system works, just as they can proceedings before this body.
    I would like to ask, I think, Justice McCormack--Madam 
Chief Justice, I understand that for the period between April 
1st and June 1st, trial courts in your State held over 35,000 
meetings on Zoom, totaling more than 200,000 hours of hearing.
    How has that worked for those proceedings and how have 
courts in Michigan worked to address security concerns, for 
example?
    Judge McCormack. Thank you for the question and thank you 
for your work on transparency in our branch.
    I share your concerns. I believe that when the public sees 
courts working, it builds confidence in what we do. Even if 
they don't like the particular outcome, they will understand it 
and respect it, and that is the whole ballgame.
    In Michigan, our live streaming of thousands and thousands 
of hours of trial court proceedings has gone extremely well. We 
are collecting information from litigants and lawyers and 
judges.
    There are a number of judges who have been able to keep 
almost current in their dockets as a result of the remote 
technology platform. Litigants report really appreciating the 
opportunities that the platform gives them to feel on equal 
footing and they report feeling being treated with dignity and 
respect, which we know underscores public trust in the outcomes 
even when they are not their favored outcomes.
    Lawyers are overwhelmingly happy with the efficiency it 
provides. A lawyer can appear in courtrooms in faraway places 
of a State all in one morning.
    Mr. Chabot. All right. Thank you, Judge. I don't mean to 
cut you off there but I have got about 20 seconds left.
    Could I just go to the other witnesses real quickly and say 
would you favor this type of legislation allowing the Federal 
courts to have cameras there?
    I see nodding by one.
    Judge Fogel. Congressman, speaking in my personal capacity, 
I would. I think trial judges are in a position to make a 
discretionary determination as to whether it makes sense in a 
particular case. I don't think they should be precluded from 
doing it.
    Mr. Chabot. Thank you.
    Mr. Chair, could the other two weight in? Thank you.
    If the other two would like to weigh in we would welcome 
it.
    Judge Campbell. Congressman, as you know, it is the policy 
of the Judicial Conference not to broadcast proceedings from 
trial courts, although Courts of Appeals do so and are 
permitted to.
    That has been the considered judgment of a very diverse 
group of judges on the Judicial Conference for years and 
remains the Conference policy at this time.
    Mr. Chabot. Thank you.
    Would the final witness like to--
    Ms. Wasser. Absolutely, Congressman. We would welcome that 
legislation. We specifically do mention it in our testimony.
    In addition to your legislation to require cameras in the 
Supreme Court, we would also advocate for the 21st Century 
Courts Act, which is co-sponsored by the Chair, requiring the 
live audio of the Supreme Court not only in oral arguments but 
also in opinion readings as well, and also creating a live 
audio archive for Federal Appellate proceedings, along with 
H.R. 6642, the Court Access Amid the Pandemic Act, which would 
require the oral arguments in Federal, Appellate, and District 
courts made public.
    We would also ask Congress to provide guidance and support 
to the Judicial Conference to talk through a possible amendment 
to that cameras in the courtroom policy to allow broadcast or 
streaming in District courts.
    Mr. Chabot. Thank you very much. It has been said, Mr. 
Chair, that sunshine is the best disinfectant and I tend to 
share that point of view.
    Thank you for your indulgence, and I yield back.
    Mr. Johnson of Georgia. I thank the gentleman.
    With that, we will conclude today's hearing. Thank you to 
the panelists for your appearance today.
    Without objection, all Members will have five legislative 
days to submit additional written questions for the witnesses 
or additional materials for the record.
    This hearing is adjourned.
    [Whereupon, at 10:46 a.m., the Subcommittee was adjourned.]

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