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JUDICIAL TRANSPARENCY AND ETHICS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

COURTS, INTELLECTUAL PROPERTY, 

AND THE INTERNET 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

FEBRUARY 14, 2017 

Serial No. 115–1 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR S. SMITH, Texas 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

KEN BUCK, Colorado 

JOHN RATCLIFFE, Texas 

MIKE BISHOP, Michigan 

MARTHA ROBY, Alabama 

MATT GAETZ, Florida 

MIKE JOHNSON, Louisiana 

ANDY BIGGS, Arizona 

JOHN CONYERS, JR., Michigan, Ranking 

Member 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

ERIC SWALWELL, California 

TED LIEU, California 

JAMIE RASKIN, Maryland 

PRAMILA JAYAPAL, Washington 

BRADLEY SCHNEIDER, Illinois 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET

DARRELL E. ISSA, California, Chairman 

DOUG COLLINS, Georgia, Vice-Chairman 

LAMAR S. SMITH, Texas 

STEVE CHABOT, Ohio 

TRENT FRANKS, Arizona 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

RON DeSANTIS, Florida 

MATT GAETZ, Florida 

ANDY BIGGS, Arizona 

JERROLD NADLER, New York 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

TED DEUTCH, Florida 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

HAKEEM JEFFRIES, New York 

ERIC SWALWELL, California 

TED LIEU, California 

BRADLEY SCHNEIDER, Illinois 

ZOE LOFGREN, California 

STEVE COHEN, Tennessee 

LUIS V. GUTIERREZ, Illinois 

JOE KEELEY, Chief Counsel 

JASON EVERETT, Minority Counsel 
(III) 

C O N T E N T S 

FEBRUARY 14, 2017 

Page 

OPENING STATEMENTS 

The Honorable Darrell E. Issa, a Representative in Congress from the State 

of California, and Chairman, Subcommittee on Courts, Intellectual Property, and the Internet .......................................................................................... 1 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Ranking Member, Subcommittee on Courts, Intellectual 

Property, and the Internet .................................................................................. 2 

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Chairman, Committee on the Judiciary ................................. 4 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 5 

WITNESSES 

Mickey H. Osterreicher, Esq., General Counsel, National Press Photographers 

Association (NPPA) 

Oral Testimony ..................................................................................................... 7 

Prepared Statement ............................................................................................. 10 

Thomas R. Bruce, Professor, and Director, Legal Information Institute, Cornell University 

Oral Testimony ..................................................................................................... 21 

Prepared Statement ............................................................................................. 23 

Charles G. Geyh, John F. Kimerling Professor of Law, Indiana Law School 

Oral Testimony ..................................................................................................... 31 

Prepared Statement ............................................................................................. 33 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable Jerrold Nadler, a Representative in 

Congress from the State of New York, and Ranking Member, Subcommittee 

on Courts, Intellectual Property, and the Internet ........................................... 47 

OFFICIAL HEARING RECORD 

MATERIAL SUBMITTED FOR THE HEARING RECORD BUT NOT REPRINTED

Material submitted by the Honorable Darrell E. Issa, a Representative in Congress 

from the State of California, and Chairman, Subcommittee on Courts, Intellectual 

Property, and the Internet. This submission is available at the Subcommittee and 

can also be accessed at: 

http://docs.house.gov/Committee/Calendar/ByEvent.aspx?EventID=105547 

(1) 

JUDICIAL TRANSPARENCY AND ETHICS 

TUESDAY, FEBRUARY 14, 2017 

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Subcommittee met, pursuant to call, at 10:06 a.m., in room 

2141, Rayburn House Office Building, the Honorable Darrell E. 

Issa (Chairman of the Subcommittee) presiding. 

Present: Representatives Issa, Goodlatte, Chabot, Jordan, Poe, 

Marino, Labrador, DeSantis, Gaetz, Biggs, Nadler, Conyers, 

Deutch, Bass, Jeffries, Swalwell, Lieu, Lofgren, Johnson, and Jackson Lee. 

Staff Present: (Majority) Joe Keeley, Chief Counsel; Zack Walz, 

Clerk; and (Minority) Jason Everett, Minority Counsel. 

Mr. ISSA. The Subcommittee on Courts, Intellectual Property, 

and the Internet will come to order with or without a gavel. 

Without objection, the Chair is authorized to declare a recess of 

the Committee at any time. 

We welcome everyone here today for a hearing on judicial transparency and ethics. And I now recognize myself for a quick opening 

statement. 

As we all know, there are three branches of government. The 

first branch has a key responsibility to make laws. Those laws, consistent with the Constitution, include the oversight of the other two 

branches. No one doubts for one moment that Congress has a responsibility to oversee Article II, the executive branch. 

Oddly enough, the courts have given us explicit rulings to just 

that, the need for oversight, particularly the need to oversight of 

our appropriation, moneys of the taxpayers. And yet in many, 

many ways, the court, not just the Supreme Court, but all of the 

courts, tend to be fairly insular and seem to believe that they and 

they alone will determine what they and they alone shall do. Up 

to a point, this Member would agree with them. Agree that, in fact, 

its interference by the executive branch or by Congress in their deliberative process in how they go about determining what is justice, 

is in fact, an area that we need not and should not tread upon 

lightly. 

However, when it comes to the taxation of the American people, 

which includes fees; when it comes to transparency, meaning 
2 

American citizens and others’ right to know; when it comes to the 

ethics of the judiciary, we have an obligation. We cannot alone simply say we will wait to impeach a judge from time to time about 

once every couple of decades. The real question of whether or not 

judges are operating appropriately in their courtroom, not just ethically but, in fact, since it is a lifetime appointment, often we recognize that judges grow old, judges have personal lives, and in fact, 

overseeing whether or not that system is properly maintained to 

ensure that every judge is doing and capable of doing their job 

when they take the bench. 

Additionally, today, we will talk about PACER. Most Americans 

do not know what PACER is, but by the end of this hearing, they 

will understand that everything that goes on in a courtroom and 

then beyond, all the way through the appellate process, is made 

available to the public through PACER, but not necessarily for free. 

We all know that fees are paid when you are prosecuting a case 

and judgments include court cost. What most people don’t know is 

that the court charges 10 cents an electronic page for their records 

and makes a tidy profit on it, which they use in any way they see 

fit and, in fact, circumvent appropriations. 

That is not to say that everything they spend the money on is 

inappropriate or that this fund’s use to ensure that we expand the 

ability to keep up with records is in fact inappropriate, but it does 

beg the question of, should the American people in this day and 

age receive more information more quickly and less expensively or 

should we allow the court to set an amount in a vacuum that allows them to use it for areas that are often well outside of their 

essential needs. 

As I mentioned earlier, judges grow old, Alzheimer’s is real, 

aphasia is real, and there is no system that guarantees that a 

judge in his or her everyday life is, in fact, being properly checked 

to ensure that they are able to do their job, one of the most important jobs in a democracy. 

Today, we will hear about cameras in the courtroom. There will 

be people on the dais for it and there will be people against it. I 

will, for one, remain open minded, recognizing that the Chief Justice is adamantly opposed to it but that, in fact, there is a question 

of whether or not it is his right to preclude that or it is our obligation to protect the Court from becoming much like the House floor. 

And in each side of that argument, there will be those who speak. 

I think it is important today that we realize that this is the first 

of many hearings that will be held on the courts. And during this 

2 years, I am dedicated, in addition to the questions of the internet 

and questions of intellectual property, to reassert this Committee’s 

responsibility to oversee the courts, to help them do their job better, to be a conduit for what they want and, in fact, an oversight 

of what they do. 

And with that, I would like to recognize the Ranking Member of 

the Subcommittee, the gentleman from New York, Mr. Nadler, for 

his opening statement. 

Mr. NADLER. Thank you, Mr. Chairman. 

Mr. Chairman, the Federal judiciary is the envy of the world. 

Dedicated to upholding the rule of law, our court system provides 

a forum for private parties to resolve their disputes peacefully and 
3 

enable society to punish those who violate the law. It also safeguards our treasured liberties and ensures that the government 

stays within constitutional boundaries. 

Unfortunately, however, we cannot ignore the fact that the judiciary is under a sustained attack right now, and it is coming from 

what should be one of the most unlikely of places, the Oval Office. 

That’s right, the President of the United States, whose unconstitutional Muslim ban has been rightly thwarted by the courts, has 

launched an unprecedented and dangerous campaign to threaten 

and attempt to delegitimize the judiciary and any judge who would 

dare enforce limits on his power. 

It is not uncommon for Presidents of both parties to speak out 

against court decisions with which they disagree, but never before 

have we seen such a brazen attempt by a President to erode public 

confidence in the courts as fair and neutral arbiters of the law. As 

most people are aware, after Judge James Robart temporarily 

blocked enforcement of President Trump’s immigration executive 

order, the President took to Twitter to label him a ‘‘so-called judge.’’ 

This was followed by several other tweets that attacked Judge 

Robart personally, called his decision political, and even claimed 

that if something happened to the United States, the judge and the 

court system should be blamed. 

Next, the President turned his target to the Ninth Circuit judges 

considering the appeal of Judge Robart’s order. In his speech the 

morning after the court’s hearing but even before its ruling, Mr. 

Trump called the proceedings ‘‘disgraceful,’’ and ‘‘so political,’’ while 

also claiming that the judges failed to grasp concepts that even ‘‘a 

bad high school student would understand.’’ 

Then after the Ninth Circuit left Judge Robart’s order in place, 

one of President Trump’s top advisers, Stephen Miller said, ‘‘The 

judiciary is not supreme,’’ and challenged the court’s legitimacy to 

question the President’s interpretation of the law. 

Finally, the President summed up his thoughts on Twitter this 

weekend writing ‘‘our legal system is broken.’’ I beg to differ. I 

think our court system worked exactly as it is supposed to. As 

chaos and confusion reigned at our Nation’s airports, the court 

stepped in to clarify that no one is above the law and that the Constitution still provides certain fundamental protections. 

Although the drama surrounding President Trump’s executive 

order has been temporarily set aside, we must not become complacent in the face of such attacks on the integrity and legitimacy of 

individual judges or the court system generally. Especially when 

they come from the President of the United States, such attacks 

are both inappropriate and reckless and dangerous. 

Already there have been reports that judges involved in legal 

challenges to the executive order have been threatened and requiring increased security protection. Moreover, President Trump’s 

broadsides against the Federal courts threaten to undermine public 

confidence in the institution of the judiciary itself. 

An independent judiciary is fundamental to the checks and balances that are embodied in the separation of powers and is essential to maintaining liberty and the rule of law. I am disturbed that 

the President either does not appreciate the role that an independent judiciary plays in our constitutional system or it does ap-
4 

preciate it and seeks to undermine it. I hope that my Republican 

colleagues, especially on this Committee, will join me in demanding 

that the President cease these attacks on the judiciary immediately. 

My deep respect for the judiciary does not mean, of course, that 

there are no improvements that we can make to the court system, 

particularly when it comes to transparency. This includes stronger 

ethics and disclosure requirements, particularly with respect to the 

Supreme Court, which is not bound by the code of ethics that applies to other Federal judges. 

Another important transparency measure would be televising judicial proceedings, at least in the appellate courts. I know that the 

judicial conference has undertaken a pilot project to bring cameras 

to the courtroom, but I think it is time to expand this across the 

Federal appellate courts. I recognize there are privacy concerns 

when it comes to trial court proceedings, but there is no reason to 

shield the appellate courts from public view. Public scrutiny of governmental proceedings and an informed citizenry is essential to democracy. 

Most courts are closed to cameras, effectively putting them off 

limits to the public at large. Transcripts and audio recordings, 

some of which are made public days or in some weeks, even weeks 

later, are poor substitutes for the immediate visual experience. 

That is why yesterday I reintroduced the bipartisan Eyes on the 

Courts Act. This legislation would finally bring important cases 

into public view by requiring that cameras be allowed in all Supreme Court and Federal appellate court proceedings. 

I do not share the concerns of those who believe that the highly 

trained lawyers and judges in appellate court proceedings tackling 

some of the most important issues facing our country will start 

playing to the cameras, nor am I aware of any such problems occurring in those Federal courts where cameras have been used. 

The Nation was riveted by the live audio stream of the Ninth 

Circuit’s consideration of the President’s executive order last week. 

Clearly, there is great interest in wider access to court proceedings, 

and I see no reason the public should be prevented from witnessing 

the other important cases considered in the Federal appellate 

courts. 

I respect the difficulty and important job that the Federal judiciary performs. If my bill becomes law, the public will have an opportunity to watch them in action and to gain a greater understanding 

and appreciation of their critical work. 

I look forward to hearing from our witnesses on this issue and 

the other important topics affecting the Federal judiciary. And I 

yield back the balance of my time. 

Mr. ISSA. I thank the gentleman. 

We now recognize the Chairman of the full Committee, the gentleman from Virginia, Mr. Goodlatte, for his opening statement. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

This morning, the Judiciary Committee continues its examination of our Nation’s—I have a brief delay here. Excuse me. 

This morning, the Judiciary Committee continues its examination of our Nation’s Federal judicial system. It is widely recognized 

that the trust that the American people have in our court system 
5 

is crucial to its success. While this trust has been cultivated over 

many generations, it can be quickly lost. This is why it is important that the judiciary continue to operate in a transparent manner 

at all times and handle the disputes before it efficiently, ethically, 

and impartially. 

This morning, we will hear from three witnesses who will 

present their ideas regarding ways to increase judicial transparency and accountability. These suggestions include greater use 

of audio and video recordings in courtrooms, free or lower cost access to court documents through the PACER system or potential replacements for it, and public disclosure of recusal decisions. 

Other issues we will consider today are the judicial disability and 

disciplinary processes. Decisions made by judges with undiagnosed 

medical conditions can be subject to challenge years later. It is crucial that all judges have the resources and confidential programs 

needed to assist them if they have any questions about their fitness 

to serve. 

Regarding judicial discipline, there have been relatively few impeachments of Federal judges by the House of Representatives. The 

Federal judiciary has its own internal disciplinary system that, in 

theory, addresses misconduct before the conduct escalates to the 

level where impeachment would be warranted. However, many 

Members of Congress have questions about the judiciary’s disciplinary system. 

Today, we will explore this system further, including examining 

the remedies available for judicial misconduct, their application, 

and the constitutional and other limitations on those remedies. 

I want to thank our witnesses for making time available to be 

here in order to provide testimony for improving our Nation’s judiciary. 

Mr. Chairman, I yield back. 

Mr. ISSA. I thank the gentleman. It is now my pleasure to recognize the gentleman from Michigan, Mr. Conyers, for his opening 

statement. 

Mr. CONYERS. Thank you, Chairman Issa. 

Welcome to all our witnesses. 

Today’s hearing gives us an important opportunity to examine judicial transparency and ethics issues, but I would like to begin my 

remarks by addressing some of the troubling statements President 

Trump has made about judges and the judiciary. 

Earlier this month, the President disparagingly referred to a 

member of the Federal bench as a so-called judge and criticized his 

decision as ridiculous. This judge is now in receipt of death threats. 

Last year, while campaigning for the Presidency, he called into 

question the validity of a ruling by a Federal judge because of the 

judge’s ethnic background. 

Most recently, President Trump, in opposing a decision rendered 

by the Ninth Circuit, said even a bad high school student could understand that his immigration ban was authorized by law and that 

it was a political decision. 

President Trump’s personal attacks against individual judges as 

well as disrespectful comments regarding the Federal judiciary as 

a whole threatened the fundamental principles of our constitutional 

form of government, namely respect for the rule of law and an 
6 

independent judiciary. Even his Supreme Court nominee, Neil 

Gorsuch, characterized President Trump’s comments about the judiciary as disheartening and demoralizing. 

Respect for the Federal judiciary should be a nonpartisan issue, 

and this hearing is an example, an excellent example, I might add, 

of cooperation with respect to oversight of that branch. Yet we 

must also be mindful of the potentially destructive attacks against 

the Federal judiciary, even if those attacks emanate from the executive office of the President. 

Accordingly, I hope my friends on the other side of the aisle will 

join me today in condemning President Trump’s comments threatening the legitimacy of our judicial branch and efforts to cast aspersions against individual Federal judges. 

An independent judiciary is critical, of course, to our Nation’s 

constitutional system of checks and balances, and we should do everything possible to ensure that that system is not undermined. 

As to the additional areas that we will consider today, I do support having cameras in the courtroom, but continue to believe their 

impact must be more carefully considered. The Judicial Conference, 

for example, notes that cameras in the courtroom could potentially 

impair the fundamental right of a citizen to a fair and impartial 

trial, and Justice Elena Kagan warns that televised coverage of 

Federal court proceedings would encourage participants to play to 

the camera. 

I would like to hear proponents of cameras in the courtroom explain how those efforts will neither undermine a citizen’s right to 

due process and a fair trial, nor have a material effect on an individual’s willingness to testify out of fear of being a target for retribution or intimidation. 

Finally, I support increased transparency of the judiciary. Last 

week, the Ninth Circuit Court of Appeals provided live-stream coverage of the oral argument on the Administration’s appeal of the 

lower court’s imposition of a nationwide stay of President Trump’s 

immigration order. Efforts such as these by the Federal judiciary, 

which makes their processes more readily available to the public, 

will promote even greater respect and understanding of the Federal 

court system and the rule of law. And as we promote transparency, 

we must also be mindful of the need to ensure the safety and security of our judges, law enforcement officers, and others participating in the judicial process. 

I thank and applaud the Chairman for holding this hearing. And 

I yield back the balance of my time. 

Mr. ISSA. I thank the gentleman. 

I now—without objection, other Members’ opening statements 

will be made in the record. 

Today we have a distinguished panel of witnesses whose written 

statements have been entered into the record. And without objection, all your written statements and extraneous material will be 

admitted into the record. 

Without objection, so ordered. 

But today, I would ask that you summarize your opening statements in about 5 minutes. To help you stay within the timing, you 

know the lights, you have all been here before, please, green means 
7 

go, yellow means you got a minute, and red means you will get a 

ticket if you run the light. 

Before introducing our witnesses, it is the rule of the Committee 

that all witnesses be sworn. So I would ask that you please rise 

to take the oath and raise your right hands. 

Do you solemnly swear or affirm that the testimony you are 

about to give will be the truth, the whole truth, and nothing but 

the truth. 

Please be seated. 

Let the record indicate that all witnesses answered in the affirmative. 

Our witnesses today include Mr. Mickey Osterreicher. 

Mr. OSTERREICHER. Osterreicher. 

Mr. ISSA. Osterreicher. More importantly, the general counsel for 

the National Press Photographers Association, who needless to say 

have been giving us images of the courts for, more or less, a century. Professor Thomas Bruce is the cofounder and director of the 

Legal Information Institute at Cornell University. Welcome. And 

Professor Charles Geyh is professor at Indiana University—your, 

what is it, Maurer—— 

Mr. GEYH. Maurer. 

Mr. ISSA.—School of Law. And each comes with a level of expertise to help guide us through three different areas that we are 

going to look at today. So welcome. 

You are recognized for 5 minutes. 

TESTIMONY OF MICKEY H. OSTERREICHER, ESQ., GENERAL 

COUNSEL, NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION (NPPA) 

Mr. OSTERREICHER. Chairman Issa, Ranking Member Conyers, 

Ranking Member Nadler, and other Members of the Subcommittee, 

good morning, and thank you for the opportunity to appear here 

today. 

My name is Mickey Osterreicher. I am of counsel to the law firm 

of Barclay & Damon, and I am here today in my capacity as general counsel for the National Press Photographers Association, an 

organization which was founded in 1946 and of which I have been 

a member since 1973. 

As the voice of visual journalists, the NPPA vigorously promotes 

and defends the rights of photographers and journalists, including 

intellectual property rights and freedom of speech in all its forms, 

especially as it relates to visual journalism. 

By way of background, I am an award-winning visual journalist 

with over 40 years experience in print and broadcast. During that 

career, I have covered hundreds of court cases from the Attica 

trials to the murder trial of O.J. Simpson. I was actively involved 

in the New York State experiment between 1987 and 1997 entitled, 

‘‘Electronic Coverage of Judicial Proceedings.’’ And by electronic, I 

mean audiovisual recordings, still photography, broadcasting, televising, or internet streaming both in realtime or hyperlinked replay. 

In an era of fake news and alternative facts, there is no better 

way to ensure transparency and promote confidence in the fair administration of justice than to expand electronic coverage of Fed-
8 

eral court proceedings. Transparent court proceedings improve the 

quality of testimony, persuade unknown witnesses to come forward, 

make trial participants more conscientious, and provide the opportunity to better observe the workings of our judicial system. To foster that essential principle, almost every State allows electronic 

coverage of criminal, civil, and appellate proceedings, to some degree. 

For many years, Congress has proposed legislation to allow such 

coverage, most recently by Representative Connolly and Judge Poe. 

Representative Nadler also introduced a bill in 2015, which he just 

reintroduced. The NPPA commends and supports these ongoing efforts. 

More recently, there have been some advances and some lost opportunities in this area. For example, the Ninth Circuit began livestreaming audio of oral arguments in 2015, and the Second Circuit 

continues its policy of permitting electronic coverage for cases with 

heightened interest. By comparison, the Supreme Court has released same-day audio of an oral argument only once, despite numerous requests to do so. In 2015, it denied such a petition for two 

of the year’s most important cases. 

The last Federal cameras pilot program officially ended in 2015, 

and while the judicial conference voted against expanding or continuing that project, it did permit three of the participating trial 

court programs in the Ninth Circuit to remain operational. Just 

this month, electronic coverage was allowed in the State of Washington v. Trump, which was recorded and uploaded to the court’s 

website. 

Last week, the telephonic arguments of the appeal in that case 

were heard live with approximately 137,000 connections to the 

audio stream from the court’s YouTube site. CNN, which also 

broadcast the arguments, averaged 1.5 million total viewers during 

that hour. Millions more may have tuned in on cable news outlets, 

local news stations, and countless other news websites. 

These latest developments weigh strongly in favor of electronic 

coverage and should also prompt the Judicial Conference, along 

with the High Court itself, to finally promulgate common-sense 

guidelines, permanently allowing such access through the Federal 

court system, up to and including the U.S. Supreme Court. 

Justice Stewart noted in 1965, we move in an area touching the 

realm of free communication, and for that reason, if nor no other, 

I would be wary of any—of imposing any, per se, rule, which, in 

light of future technology, may serve to stifle or abridge true First 

Amendment rights. 

The Framers envisioned court as being part of a public square, 

a place in a merging—in an emerging Nation where anyone could 

stop in to observe the proceedings and be assured of the integrity 

of our system of justice. Given the increasing complexity of our society and the size of our communities, that aspiration is exceedingly more difficult to achieve. As Chief Justice Burger stated in 

a 1980 case, people in an open society do not demand infallibility 

from their institutions, but it is difficult for them to accept what 

they are prohibited from observing. 

The ability of the public to view actual courtroom proceedings 

should not be trivialized. It touches on an important right, which 
9 

goes well beyond the mere satisfaction of viewer curiosity. And that 

right, advanced by electronic coverage, is the right of the people to 

monitor the official functions of their government, including that of 

the judiciary. Nothing is more fundamental to our democratic system of governance. 

The NPPA looks forward to working with you on these issues 

and thanks you for the opportunity to testify. I welcome your questions. 

[The prepared statement of Mr. Osterreicher follows:] 
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Mr. ISSA. Thank you. 

Professor Bruce. 

TESTIMONY OF THOMAS R. BRUCE, PROFESSOR, AND DIRECTOR, LEGAL INFORMATION INSTITUTE, CORNELL UNIVERSITY 

Mr. BRUCE. Chairman Issa, Ranking Member Conyers, Ranking 

Member—— 

Mr. ISSA. If you could pull the mike slightly closer, I would appreciate it. 

Mr. BRUCE. Sure. 

Mr. ISSA. Thank you. 

Mr. BRUCE. Chairman Issa, Ranking Member Nadler, Ranking 

Member Conyers, Members of the Committee, thank you for inviting me to appear before you today. 

My name is Tom Bruce. I am the Director of the Legal Information Institute at Cornell. We have been putting legal information 

online for the public for 25 years and currently reach an audience 

of approximately 32 million individuals each year. 

I am here to talk to you today about the operation and future direction of the PACER system for public access to the opinions of 

the Federal courts. 

Let me begin with three things that define PACER: First, 

PACER charges fees for access to public records. That has been the 

cause of a great deal of criticism, not only because fees erect a barrier for many, but because the revenue from fees at current levels 

considerably exceeds the cost of operating the system. That is inconsistent with policies established by the Congress in the E-Government Act of 2002. 

Second, PACER’s technology has struggled to stay up to date. 

That was, to some extent, an accident of history. PACER was implemented shortly before the introduction of the worldwide web, 

and it was all too quickly seen as outmoded and out of touch with 

current technology. Over the last few years, it has made up some 

of the gap, but the system still falls short on a number of dimensions, notably in the area of search and retrieval. 

Third and most important, PACER suffers from a split personality. On the one hand, it is an electronic filing and case management system that supports the Federal courts with an audience of 

lawyers, judges, and court administrative personnel. On the other, 

and most important to the public and the Congress, it is a data 

publishing system that offers the work of the Federal courts to a 

very wide range of people, including litigants, researchers, and government itself. 

Equally, there are a number of things that PACER is not. First, 

PACER is not transparent in its business model or operations. 

Second, PACER is not an adequate facility for research on the activities of the Federal courts. That is chiefly because it does not 

provide bulk access to its data. Significantly, research activities 

that might be carried out on behalf of the Congress are impeded. 

Social Security cases, prisoner appeals, and immigration matters 

are all examples of areas in which study of judicial outcomes is important to those who have responsibility for investigation and evaluation of operations across the full breadth of the government. 
22 

Third, PACER is not an effective protector of privacy. And finally, it is not an adequate vehicle for citable legal research because it lacks a system of unique identifiers. 

These are hard problems, especially given the scale and diversity 

of what is published in PACER, but they are soluble, provided that 

Congress acts. Both the Congress and the Federal courts have 

strongly and repeatedly announced their commitment to providing 

full access, even to unpublished opinions, at minimal or no cost. 

So what needs to be done? First, fees need to be removed as 

quickly as possible. Dissemination fees have strongly inhibited beneficial uses of the data contained in the primary record of the workings of our Federal courts. Consideration should be givento removing per-page viewing fees, or at the very least, paring them back 

to a level that more closely matches PACER’s cost of operation. 

Second, the details of PACER’s operations and business model 

need to be far more visible to the Congress and to the public. A 

CRS report describing the business and technical operation of the 

system in detail would be more than helpful and would bring welcome clarity to many of the issues involved. 

Third, the users of PACER’s data publication services need representation in the planning and design processes. Published articles by PACER’s designers celebrate the responsiveness of its design to the needs of users of the e-filing and case management systems. That can be charitably interpreted as a sound effort to respond to a range of important customers who are in a position to 

express their needs to the designers. Understandably, those to 

whom the designers answer are preoccupied with the e-filing and 

case management portions of the system and are not nearly as concerned with publication. 

Fourth, PACER’s data publishing operation should move to a 

new home. Why not put responsibility for data publishing operations with an organization that has publishing as its primary mission? The Government Publishing Office and the AO already have 

a pilot program for the publication of judicial opinions underway. 

It has been successful. It appears to be scalable to the dimensions 

that PACER would require. 

Much work would still be needed. GPO’s system only extends 

right now to about 100 courts. Its chronological range is narrow, 

and better metadata is needed even within PACER itself. 

But the potential benefits are many. First and foremost will be 

the removal of barriers that prevent the public from exercising the 

right to know the laws that govern them. Publication systems that 

permit research utilizing the full range of data available from 

PACER will make it easier for the Congress to fulfill its responsibilities, improve the efficiency and functioning of the judiciary, 

and stimulate new approaches to legal information, while encouraging new and innovative businesses. 

Thank you for the opportunity to testify today. I look forward to 

your questions. 

[The prepared statement of Mr. Bruce follows:] 
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Mr. ISSA. Thank you. 

Professor Geyh. 

TESTIMONY OF CHARLES G. GEYH, JOHN F. KIMERLING 

PROFESSOR OF LAW, INDIANA LAW SCHOOL 

Mr. GEYH. Mr. Chairman, it is a privilege to serve—to appear before the Subcommittee I served on. 

Mr. ISSA. Perhaps the microphone a little closer in and on. 

Mr. GEYH. There we go. If I turn it on, it works better. 

Mr. ISSA. Superb. 

Mr. GEYH. It is a privilege to appear before the Subcommittee 

that I served as counsel nearly 25 years ago, dry gulp. 

The Constitution works and the judiciary it established works because we believe it works. If we lose that faith in the judicial system, Congress can gut its budget, the President can defy its orders, 

and the role the Framers envisioned for the judiciary keeping the 

other branches in check will be lost. And so I do share Mr. Nadler 

and Mr. Conyers’ concern that there is a difference between robust 

criticism, which I think we need, it is essential to accountability; 

and assaults on the legitimacy of the judiciary as an institution, 

which do worry me because the judiciary is fragile in that regard. 

Unlike Congress, which derives their legitimacy from the voters, 

the judiciary doesn’t have voters. They derive their legitimacy from 

their perceived integrity, their perceived impartiality, their perceived independence, which really is the subject of this hearing 

today, because the mechanisms, like recusal, like discipline, like 

codes of conduct, like disclosure are ways that we hold the judiciary 

accountable. They are the ways that we hold the judiciary, you 

know, make sure that the judiciary is legitimate. 

To those ends, let me talk first briefly about disqualification. I 

think the substantive standards are fine. I think that there is a 

concern, though, with process. Congress has not legislated the process for disqualification, which means that it is all over the map. 

And the norm that worries me most is the norm that judges get 

to decide their own disqualification, which is like grading your own 

homework. 

I think it is problematic, from an appearance standpoint, for 

judges to be put in a position of being asked, are you too impartial 

to sit, too partial to sit, and the person who answers that is the 

judge who may be too partial to sit. I mean, we need to work on 

that one. 

Second, when it comes to codes of conduct, the Judicial Conference promulgated codes beginning in 1973, and they are terrific. 

Unfortunately, the Supreme Court does not have a code that applies to it, and I think that is a problem. Twenty-five thousand 

judges in the United States, nine are not subject to a code of ethics 

and they are the most powerful judges in the country. The optics 

are bad. 

Now, the Chief Justice tells us that they don’t need a code because they consult the code that applies to the lower Federal 

courts. The trouble with that is that you know and I know that you 

are going to react differently to a code that applies to someone else 

as opposed to a body of rules that applies to you, and the exhibit 

A for that would be Justice Ginsburg from last fall when she starts 
32 

criticizing then candidate Donald Trump, under circumstances in 

which the Code of Conduct says, no, you don’t. Two days later, she 

retracts those statements after the code is called to her attention. 

I would like to think that if they had a code and bound themselves 

to it, this problem would never have occurred. 

Turning to discipline. The disciplinary process has been in place 

since Congress created it in 1980. It did fall into some disrepair 

about 10 years ago, and thanks to the vigilance of this Committee, 

the process got jump-started. And I would like to congratulate the 

Judicial Conference for making some significant improvements in 

2008 and again in 2015 that have made it work better. 

My lingering concern, frankly, is that—with the disciplinary 

process is that, the statutory standard is exceedingly vague. Misconduct is defined with reference to conduct that is prejudicial to 

the effective and expeditious administration of the business of the 

courts. I worry a little bit that that lets the judiciary do whatever 

they want to and—or more—and that is too strong. I think they do 

a conscientious job. But the trouble is that from a perception standpoint, that can mean just about anything. 

The solution that virtually every State has employed is to say we 

can have this general disciplinary standard, but we define it with 

reference to the Code of Conduct. Has the judge violated the Code 

of Conduct? If so, then is the violation severe enough to warrant 

discipline? But by tethering this very vague standard to the code, 

everybody understands what the operative rules are and when a 

judge is going to be at risk. 

Finally, I didn’t talk about this at length in my testimony, in my 

written testimony, but a point about disclosure. You know, I think 

that the financial disclosure statements are essential for the general public, they are essential for—they are essential for lawyers 

who have clients who appear before judges, and they are essential 

for watchdog organizations. My concern is that we still don’t have 

a system in place where we are enabling the public to get ready 

and open access online to those disclosure statements. 

I understand where the judiciary is concerned, and I suspect the 

judiciary’s primary concern is for the safety and security of its 

judges. There are nasty people out there who appear before judges, 

and they worry that information about the judge’s family and addresses can be problematic. That, I think, is best resolved by redaction rules and not by hiding the ball when it comes to forms that 

the public is legitimately entitled to receive. Thank you. 

[The prepared statement of Mr. Geyh follows:] 
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*Note: The material referred to is not printed in this hearing record but is on file with the 

Subcommittee, and can also be accessed at: 

http://docs.house.gov/Committee/Calendar/ByEvent.aspx?EventID=105547 

Mr. ISSA. I thank all three of you. I will now recognize myself 

for a round of questioning. 

And I would like to ask unanimous consent that the statement 

by Professor Jonathan Zittrain be placed in the record in which, essentially, he offers to make available PACER for free.* And I will 

begin there. 

Mr. ISSA. Professor Bruce, is that viable? Is it viable to simply 

offload all of the information of the courts, potentially, to make it 

free without commercial advertising? 

Mr. BRUCE. It is very difficult to tell, and that is part of the reason that I am interested in getting more detailed reporting of PACER’s finances, and people have made various suggestions over the 

years. There is some thought that, for example, the entire cost of 

covering PACER could be generated through filing fees. There is 

also—there is also the possibility that one could go into some form 

of commercial licensing for those who are actually making commercial use of the data as another possible source of revenue. 

But all of those, at this point, are merely informed guesses because the finances of PACER are not particularly transparent. I received this morning, as you have, a bunch of information about 

PACER’s financials that I have not seen before. 

As far as operating from a third party point of view, if someone 

were to hand that to us tomorrow, it would be difficult to do. 

I do think that the people who are operating FDsys at the Government Publishing Office are in a good position to do it. They are 

a quarter of the way there already in terms of the number of courts 

that they are covering. 

Mr. ISSA. Thank you. 

Now we go to cameras in the courtroom. Mr. Osterreicher, let me 

move away from cameras in the courtroom directly and just go a 

round of quick questioning for my own edification. Is it reasonable 

to assume that since the courts in most areas of the country allow 

witnesses to be video deposed and those depositions, in video form, 

are admissible, that in fact video has a practical value to juries 

making decisions? 

Mr. OSTERREICHER. I think it absolutely does. Part of a jury’s 

function is to look at the demeanor, character of those people testifying. Sometimes just seeing a transcript or even just hearing the 

audio is not enough. So I think that video is a very important component. 

I also think, even though most court proceedings are not very 

compelling television, if you have high quality—— 

Mr. ISSA. But you have been there for the good ones. 

Mr. OSTERREICHER. Yes. But even then, sometimes, you know, it 

has been said that most courtroom proceedings are like watching 

paint dry. It just is not the Perry Mason confession moments that 

we are used to seeing in an hour’s worth of television. 

But that said, I think they are far more interesting than just the 

transcripts and audio themselves. Though, in the alternative, as we 

have seen just recently, there are a lot of people that wanted to 

hear that oral argument in the Ninth Circuit. 
45 

Mr. ISSA. That is one thing we can count on is, even when paint’s 

drying, somebody will dump the bucket every once in awhile and 

it will get very exciting in the room. 

Professor Geyh, I want to spend the rest of my time asking a few 

questions on ethics. You mentioned conflicts of interest, and this is 

a great question. Do you believe that we have the obligation to ensure that a system is in place that is verifiable as to people who 

have conflicts and thus there has to be disclosure in order to determine whether there may be a hidden conflict? 

Mr. GEYH. I would agree. 

Mr. ISSA. Do you believe that, at a minimum, a body in camera 

must make that decision? And when I say in camera, obviously, 

you talked about redacting, but however it is done, it has to be sufficient to understand where the conflicts may come while, in fact, 

protecting the privacy—necessary privacy of judges. 

Mr. GEYH. Right. And I would—there is a Judicial Conference 

committee on financial disclosures that I assume would be able to 

help with that, but yes. 

Mr. ISSA. Now, currently, each circuit is the highest authority for 

whether a judge is competent. Isn’t that correct? 

Mr. GEYH. Competent to—oh, in terms of having a conflict? 

Mr. ISSA. No, if a judge becomes unable—— 

Mr. GEYH. The disability provisions. 

Mr. ISSA. Yeah, under disability, it is decided—— 

Mr. GEYH. The circuits control that. 

Mr. ISSA. And constitutionally, what basis is there for a circuit 

to decide it when, in fact, the Constitution only gives authority to 

the Supreme Court? 

Mr. GEYH. What is the constitutional authority for the legislation 

that provides for that, you mean? 

Mr. ISSA. Well, what is the constitutional basis for putting it in 

the circuit rather than holding some level of responsibility? In 

other words, do we have—have we written statutes that negate the 

ultimate responsibility of nine men and women on the court? 

Mr. GEYH. Well, if we are talking about the competence issue, I 

think that—I mean, the way I look at it is the 1980 legislation provided for a circuit-based disciplinary and competence standard that 

dates back to 1939. 

Mr. ISSA. Okay. And I will be brief with the last two wrap—quick 

questions. One, currently, there is no transparency as to that. In 

other words, you really don’t know whether somebody is being considered for either their technical competence, their health competence, or their ethical competence. 

Mr. GEYH. In the early stages of the process, it is not. That is 

right. 

Mr. ISSA. And lastly, currently, there is no requirement for physical or mental evaluations of judges even into their 70’s, 80’s, and 

90’s? 

Mr. GEYH. Not that I am aware of. 

Mr. ISSA. Thank you. 

I now recognize the Ranking Member for his questions. 

Mr. NADLER. Thank you, Mr. Chairman. I have several questions. Before I ask them, I ask unanimous consent that a statement 

from our colleague, Mr. Connolly of Virginia, be entered into the 
46 

record regarding his legislation, the ‘‘Cameras in the Courtroom 

Act,’’ which would require television coverage of the Supreme 

Court, along with a copy of the bill. 

Mr. ISSA. Without objection, so ordered. 
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Mr. ISSA. And we will not take that as an endorsement of the alternate legislation, I trust. 

Mr. NADLER. No, no, no, just as a reference. Thank you. 

Mr. Osterreicher, it has been estimated that between the live 

stream on YouTube, Facebook Live, and simulcast on the cable networks, more than a million people tuned in to listen to the Ninth 

Circuit’s oral arguments in the executive order case. Do you think 

that the ability to listen to the arguments without any news filter 

helps people counter the President’s assertions or judge the validity 

of the President’s assertions about the integrity of those proceedings? 

Mr. OSTERREICHER. I think it is critical that people in—as I said, 

in this day and age of alternative facts and accusations of fake 

news against the media, that the people have an opportunity to see 

and hear for themselves how government is conducted in all three 

branches. Unfortunately, what we have seen is, in the judicial 

branch, that has not always been available, at least at the Federal 

level. 

Mr. NADLER. Well, here it wasn’t the media’s characterization. It 

was the President’s characterization of the hearing as terrible and 

horrible and so forth. And do you think that the fact that over a 

million people at least heard the audio stream helped counter that? 

Mr. OSTERREICHER. It is a much more direct form of democracy 

where people can see and hear for themselves, just as our Framers 

envisioned being able to, you know, stop by a court on their way 

about their daily activities. Unfortunately, these days, that can’t 

happen, but we do have the capability of that type of communication through audiovisual coverage. 

Mr. NADLER. Thank you. 

Now, the argument before the Ninth Circuit was a very high-profile case, obviously, and on rare occasions, the Supreme Court has 

released audio of high-profile cases within minutes of the arguments’ completion instead of at the end of the week, as is the normal practice. Is there any rational distinction between how the Supreme Court handles high-profile cases and how it handles less 

newsworthy cases? 

Mr. OSTERREICHER. I don’t think that there should be. I think 

that they should develop some standard practices. In terms of releasing, they have only done that once. Most of the time, even in 

high-profile cases, in the two that I mentioned last year, they still 

said that, in a very terse statement, they would stand by their Friday release. And as most people know, Friday is not exactly the 

best day to get people’s attention when they are trying to start 

their weekend. 

Mr. NADLER. It is a dump day. But is there any rational distinction between the cases, other than that they were high profile, 

where the Supreme Court released the audio transcript quickly and 

most cases where they didn’t? 

Mr. OSTERREICHER. I don’t think that there really should be. 

Again—— 

Mr. NADLER. Should be. But is there—is there a rational distinction that you can make that said: Well, here the Supreme Court 

said yes, but there, they said no for the following reason? 

Mr. OSTERREICHER. No. 
51 

Mr. NADLER. There is no rational distinction here. 

Mr. OSTERREICHER. Not as far as I can see. 

Mr. NADLER. When the Supreme Court has released audio more 

quickly, have we witnessed any ill effects? 

Mr. OSTERREICHER. No. I mean, it is an appellate review, so we 

are not looking at somebody’s Sixth Amendment rights coming into 

play as we might in a trial court. 

Mr. NADLER. That is why my bill doesn’t include trial courts. 

Mr. OSTERREICHER. I understand. 

Mr. NADLER. One of the criticisms of bringing cameras into the 

courtroom that we hear most often is that the lawyers or judges 

may play to the cameras. Are you aware that this has occurred in 

any of the courts that participated in the Judicial Conference’s pilot 

program? 

Mr. OSTERREICHER. Not that I am aware of. And as a matter of 

fact, in that 10-year experiment in New York, I think the most telling statistic is the fact in the tens, if not hundreds of thousands 

of cases that were heard, not one appeal was taken in a criminal 

court case or in any case based on the fact that someone didn’t get 

a fair trial under the Sixth Amendment because—— 

Mr. NADLER. In those—— 

Mr. OSTERREICHER [continuing]. Of the fact that there was a 

camera in the court. 

Mr. NADLER. In those trials—in that trial situation, I suppose 

you would have to call it, are you aware of any allegations by anyone that any—that any hearing was affected by playing to the cameras? 

Mr. OSTERREICHER. No, there has always been that speculation, 

but—— 

Mr. NADLER. Speculation. But any allegation that in that case 

this is what happened? 

Mr. OSTERREICHER. None that I am aware of. 

Mr. NADLER. Thank you. 

And, Mr. Bruce, you have given a lot of careful thought to various ways that you believe PACER could be improved, both from 

a technical standpoint and ways to enhance public access to the 

documents contained in PACER. Have you had the opportunity to 

share your views with the administrative office of the courts? 

Mr. BRUCE. No, I have not, sir. 

Mr. NADLER. Oh. I was going to ask if they were receptive to 

your recommendations, but obviously, you haven’t shared it with 

them. 

Have you asked for the ability to share it with them? 

Mr. BRUCE. I have not. 

Mr. NADLER. Is there a reason for that or—— 

Mr. BRUCE. I am, to be honest with you, sir, fairly new to the 

issue. I have monitored it for years. It has not been—it has not 

been something to which I have paid deep attention until recently. 

Mr. NADLER. And finally, what sort of ability does the public 

have to comment on PACER, if any? 

Mr. BRUCE. None that I am aware of. 

Mr. NADLER. Thank you. I yield back. 

Mr. ISSA. I thank the gentleman. 
52 

We now recognize the Chairman of the full Committee, the gentleman from Virginia, Mr. Goodlatte. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Mr. Geyh, in cases of alleged misconduct, this Committee has deferred to the Judiciary Committee, in some instances, for an initial 

investigation before its potential referral to us for further action, 

including the possibility of impeachment. Does the judicial branch 

operate in an efficient manner when it is conducting its investigations? 

Mr. GEYH. Much more so. I think that this Committee lit a fire 

under the judiciary about 10, 15 years ago when this Committee 

reached the point of actually considering the impeachment of Judge 

Real. And part of it was to say: Look, if you are not going to do 

your job, we are going to have to jump in. And that, I think, resulted in some very positive things, including some upgrades to the 

judicial disciplinary process. 

I now feel as though they are taking it seriously. I think that 

this kind of oversight is critical to maintain that. But yes, I do 

think that they are doing a much better job than they were if I 

were testifying 15 years ago. 

Mr. GOODLATTE. I generally agree with that. I have had experience handling two impeachments of Federal district court judges. 

In one of those instances, I am not sure that the Committee would 

have had the wherewithal to proceed without the preliminary investigative work that was done by the, I believe in that case it was 

the Fifth Circuit Court of Appeals. 

The Justice Department declined to prosecute in that case, and 

it left us in a situation where we really had to develop our own 

case. We had four Articles of Impeachment. In the end, the Senate 

voted to convict that judge in all four instances. And I would give 

a lot of credit to the work that was initially done by the Fifth Circuit to lay the groundwork and provide information to us that was 

the foundation for our building a case. 

However, I also recall that in that case there were a number of 

judges that did not believe that the offenses that had been committed by that judge were indeed impeachable offenses. And so I 

am wondering if this process, the way it is laid out today, puts the 

judiciary in an awkward situation where people who work with 

each other on a regular basis are called upon to pass judgment 

upon those same members of that same circuit of the judiciary. I 

am wondering if you have any observations about that? 

Mr. GEYH. Well, I am not sure if you are talking about Judge 

Porteous. 

Mr. GOODLATTE. I am talking about Judge Porteous. 

Mr. GEYH. I was an expert witness for the prosecution in that 

case. 

I differentiate in my own mind between conduct that judges may 

think is bad behavior warranting discipline and conduct that is so 

bad that it warrants impeachment. And I felt as though that was 

an example of the system working as it should because they 

worked it through the pipeline and ultimately recommended that 

impeachment be taken. 

The Real case that I talked about before is more of a case where 

I think it was dysfunctional, because then the system ground out 
53 

for years in the disciplinary phase without the public having adequate notice. 

I do think—what you are calling attention to is the inherent 

problem of judges judging their own, and that is an inherent problem. And to my way of thinking, the way we address that problem 

best is by keeping, you know, feet to the fire in a limited way by 

basically having hearings like this in which we bring the judges 

forward and say, what is the process, how does it work, tell us how 

it works, and whether we are getting adequate transparency at 

what points in the process so that we can look at it and say this 

is good. 

The one last point I will make is that Congress abandoned meaningful impeachment investigation in the 1940’s because it is bloody 

exhausting, that they waited for someone else, either a prosecution 

or the judicial branch to go first. I think that is preferable, given 

how much work this body has, if we can manage to make that doable. 

Mr. GOODLATTE. I take it then, however, that you think we 

should have another panel or another hearing in which we invite 

judges themselves to come and talk about these same issues that 

you are—— 

Mr. GEYH. I think so. I think that is important, yeah. 

Mr. GOODLATTE [continuing]. Addressing here today, and I agree 

with you. 

Mr. Osterreicher, some have expressed concern about sensitive 

information being made public if cameras are allowed into the 

courtroom. How can sensitive information best be protected when 

cameras are present? 

Mr. OSTERREICHER. Well, I think that every legislation that I 

have seen really relies on the discretion of the trial court judge. He 

or she should be the final arbiter as to what happens in his or her 

courtroom. 

At the appellate level, I think, you know, there is a number, in 

all the briefings, if something needs to be redacted, that is fine, but 

I can’t imagine, during an oral argument at the appellate level, 

that we would see that sensitive information. 

So at the trial court level, once again, I think that should be in 

the discretion of the presiding judge. 

Mr. NADLER. Would the gentleman yield? Would the gentleman 

yield for a second. 

Mr. GOODLATTE. Yeah, I will be happy to yield. 

Mr. NADLER. And in any event, if that problem exists, that problem exists with the audio which is released now. The camera 

doesn’t really add or detract from that problem. 

Mr. GOODLATTE. I thank the gentleman for his comments. I 

thank the witness, and I yield back. 

Mr. ISSA. I thank the gentleman. 

And we now go to the gentleman from Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you so much. 

I want to go back to the cameras in the courtroom for just a 

minute. Some believe that cameras in the courtroom could heighten 

the level of and the potential threats to Federal judges, particularly 

those proceedings involving highly controversial matters. 

Mr. Osterreicher, how do you feel about that? 
54 

Mr. OSTERREICHER. Well, I think it is very difficult to put the 

genie back in the bottle. As we have seen from the internet, if you 

do a search, you can usually find somebody’s image with their 

name. The last time that I testified before the Subcommittee, that 

issue was raised as well by the Federal trial court judge who was 

also one of the witnesses. I had never seen her before but was able 

to, once again, google her name and come up with lots of images 

of her. 

So the fact is that if somebody is testifying in court, that their 

image will be shown, I think—I certainly understand the concerns 

of the jurists there. But again, in terms of the presiding justice, if 

there is a security issue with one of the witnesses, then that judge 

has the ability to decide that that video not be recorded or broadcast. 

Mr. CONYERS. Professor Geyh, in your testimony, you state that 

there are 25,000 judicial offices in the United States. All but nine, 

of whom are most visible and influential nine in the Nation, are 

not subject to a Code of Judicial Conduct. Should Congress consider 

legislation that requires the Supreme Court to promulgate a code 

of conduct applicable to itself? 

Mr. GEYH. I think so. Steve Gillers and I wrote an op-ed last 

year in support of Mr. Murphy’s bill that did just that. And you 

know, in a perfect world, the judiciary would quietly appoint a 

Committee and promulgate a code of its own based on the Code of 

Conduct for U.S. judges, but it hasn’t done that. And I do think 

that if we are concerned about the legitimacy of the judiciary, we 

really ought to think seriously about insisting that they take that 

step. 

Mr. CONYERS. And let me add this. Is it possible that President 

Trump’s recent statements about the judiciary could cause citizens 

to lose faith in the rule of law and the judiciary, and why would 

that be a huge problem if that is so? 

Mr. GEYH. In my view, sustained attacks not in the form of criticism of judicial decisions, not in the form of criticism of judges, but 

suggesting that the judiciary should not be respected because the 

judges are so-called because they are only deserving of respect if 

you—if they do what the President wants, over the long term, that 

can erode public confidence in the independent judiciary. 

And let me just say that I am not a social scientist, but I follow 

a lot of social science about this, and the social scientists have 

drawn a line between talking about the courts as legal realists 

where they are influenced by their ideologies and so forth. The public understands that. Ninety percent of the public is cool with that. 

They understand how that works. It doesn’t cause them to think 

twice about the legitimacy of the courts. 

The line gets crossed when they are perceived as just politicians 

in robes. In other words, not just that these are honorable people 

who may be influenced by their backgrounds and experience, but 

they are politicians in robes. And the concern I have is when you 

are calling them just political, when you are saying they are socalled, when you are calling them disgraceful is that you run that 

risk, and at that point, I think you can—very quickly, the judiciary 

can fall like a house of cards if we lose that legitimacy. 
55 

Mr. CONYERS. Thank you so much. Is it possible then that President Trump’s recent statements about the judiciary could cause 

citizens to lose faith in the rule of law and the judiciary? 

Mr. GEYH. I would like to think that the American people are 

made of sterner stuff in the sense that if this persists, we have a 

serious problem. My hope is that the response to those attacks creates a public debate that allows for this problem to be neutralized. 

So I regard—I join conservative scholar Will Baude, who was in the 

Washington Post last weekend, saying these attacks are deadly serious. By themselves, I am not sure that they are going to diminish 

the legitimacy of the judiciary, but if gone unresponded to or uncorrected, they could. 

Mr. CONYERS. My final question is to Director Bruce. What barriers should be removed that prevent the public from reading the 

opinions of the court, in your estimation? 

Mr. BRUCE. The first and most important barrier is economic. It 

is the per page viewing fee. The second is a problem of sort of practical obscurity that has to do with the data in the system. So, for 

example, in PACER currently, it is actually not possible to retrieve, 

with any certainty, the author of a specific opinion. In other words, 

if you want to see all the opinions by Judge Smith, that cannot be 

done with complete confidence. And there are other metadata lacks 

we could point at, but that is the most striking one. 

Mr. CONYERS. Thank you so much. 

Thank you, Mr. Chairman. 

Mr. ISSA. I thank the gentleman. 

We now go to the gentleman from Pennsylvania, Mr. Marino. 

Mr. MARINO. Thank you, Mr. Chairman. 

Welcome, gentlemen, and let me get directly to the issue. Do any 

of you support cameras in the courtroom other than, other than appellate arguments? And start with you, Mr. Geyh. 

Mr. GEYH. I support it only in appellate arguments. I support it 

in limited use in trial scenarios, carefully circumscribed to protect 

litigant rights. 

Mr. MARINO. Professor Bruce? 

Mr. BRUCE. I agree with Professor Geyh. 

Mr. MARINO. Okay. Sir? 

Mr. OSTERREICHER. I support them in all aspects of the judicial 

proceedings. For all these years, all of the concerns that have been 

expressed have been shown to just be speculative. 

The last time the Supreme Court heard a case based on the fact 

that somebody claimed they didn’t get a fair trial, due to cameras 

was 1981 in Florida v. Chandler. So I think, again, under the discretion of the trial court judge, 

that cameras are absolutely crucial to allow the public to see what 

goes on in courtrooms. 

Mr. MARINO. But sir, don’t you think that speculation is something that really should not play a part in this, particularly in a 

criminal proceeding? 

In a capital murder case for the person—the defendant, for the 

family members, who are sitting there because of the victim, anything that we can prevent from swaying a decision other than the 

facts before the jury, I think, is most paramount. Do you have a 

response? 
56 

Mr. OSTERREICHER. I believe having been in courtrooms, 

throughout that 10-year period and beyond, that the jury, the participants, are completely unaware of the fact that there are cameras. 

And that was when there were actual personnel in the courtrooms. Now we have multiple cameras in this room. I think, for the 

most part, eventually, people get used to the fact that they are 

there. We’re videotaped and photographed a dozen if not more 

times a day—— 

Mr. MARINO. Don’t you think that a witness—a witness, particularly a child, would have reservations about testifying in front of 

a camera? Don’t you think that—look, there’s enough 

grandstanding in Congress before the cameras in hearings and on 

the floor. Can you imagine what would take place in a courtroom? 

Mr. OSTERREICHER. Well, I kind of saw what took place in the 

courtroom during the O.J. Simpson trial. 

Mr. MARINO. And that was a circus in and of itself. Even the 

judge—even the judge, in my opinion, spent too much time looking 

at the cameras as did defense and prosecution. This is a dangerous, 

dangerous area to get into. 

I was a prosecutor for 18 years and a rule of law person, you 

know, and the last thing we need is speculation that, well, nothing 

will happen. What if something happens? 

Mr. OSTERREICHER. But that in itself is speculation. I think, you 

know, in terms of—— 

Mr. MARINO. It’s not a speculation as to whether a person’s going 

to be executed, whether a victim or a victim’s family is going to 

seek to receive justice. 

I have no problem at the appellate level, but going into the courtroom is—it’s just another entertainment to be turned into a circus, 

as we see now, particularly with video cameras, people with their 

cell phones. This is—we’re treading on dangerous, dangerous area 

here as far as rights are concerned and the rule of law. I’ll let you 

respond. 

Mr. OSTERREICHER. I understand and respect your opinion. I 

think when you’re talking about a child or a reluctant witness, once 

again, the trial court can decide whether or not—— 

Mr. MARINO. So who makes this determination? Every single 

judge? Who makes the determination? A panel of judges? You 

three? Us in Congress? Who sits down and determines what the 

guidelines are? 

Mr. OSTERREICHER. I think that each judge in—that is presiding 

over that courtroom, just like they have to make rulings—— 

Mr. MARINO. Well, we have numerous—we have numerous, multiple decisions made as to whether there’ll be a camera there or 

whether there will not be a camera there and nothing consistent. 

I think you understand my position on this. And I yield back the 

remainder of my time. 

Mr. ISSA. Can I—would you yield to me? 

Mr. MARINO. Certainly. 

Mr. ISSA. I want to follow up on his question. In a criminal trial, 

you have somebody who is innocent until proven guilty. If you 

stream live even their testimony or their face, are you or are you 

not, in fact, making a public characterization? And is that some-
57 

thing that’s—and I know they do it in State court. Is that something that we must do, or is it something that we’d like to do? 

And I think that’s where the gentleman from Pennsylvania’s 

question goes, where he looks at appellate and says, we could be 

onboard, because we don’t have this question of innocent people, 

whether they’re witnesses, plaintiffs, defendants. 

So I would follow-up and just ask, is this something that would 

be nice to do, that you would like to do, or, in fact, is getting the 

appellate made universally available, including the Supreme Court, 

more likely to be something where the American people have a 

right to know, and there’s less conflict involved? 

Mr. OSTERREICHER. I would be happy to start anywhere. And if 

it’s at the appellate level, I think there should be a rebuttable presumption that courtrooms are open and open to cameras. And then 

if there is something that can refute that, for whatever reason, at 

either the appellate level, the Supreme Court, or a trial court level, 

then that can be dealt with. But that’s just something that I think 

the public has a right to see. 

We’ve all, I think, are in agreement that courtrooms are open to 

the public, and kind of blaming the camera for the circus-like atmosphere that goes on sometimes inside and sometimes outside the 

courtroom, I think, is shooting the messenger. 

The example that I would use at a Federal level is during the 

trial of the Oklahoma City bomber. There were cameras in the 

courtroom that were used to broadcast closed circuit TV so that 

people back home where the bombing took place could watch that. 

And, unfortunately, the public missed an opportunity to see a wellconducted trial by Judge Matsch there versus the circus that we 

saw in O.J. 

Mr. ISSA. I appreciate that. 

We now go to the gentleman from Georgia, Mr. Johnson, for 5 

minutes. 

Mr. JOHNSON OF GEORGIA. Thank you, Mr. Chairman, for holding 

this hearing. 

And thank you, gentlemen, for being here today to testify. 

Mr. Osterreicher, in Professor Geyh’s remarks, his written remarks, and also his testimony, he lays out the principle that Federal judges derive their legitimacy from the respect that they command as a result of their personal competence, impartiality, independence, and integrity? Do you agree with that statement? 

Mr. OSTERREICHER. I do. 

Mr. JOHNSON OF GEORGIA. And how you about, Professor Bruce? 

Mr. BRUCE. Yes, I do. 

Mr. JOHNSON OF GEORGIA. And to maintain that respect that 

they command as a result of the perception of competence, impartiality, independence, and integrity, judges should make decisions 

according to the law, unclouded by personal bias or conflicts of interest. That’s another statement that Professor Geyh makes in his 

written testimony. 

Do you both agree with that as well? 

Professor Bruce and Mr. Osterreicher? 

Mr. OSTERREICHER. I do. 

Mr. BRUCE. Yes, I do. 
58 

Mr. JOHNSON OF GEORGIA. And do you also agree that when the 

public perceives a lack of competence, impartiality, or bias in favor 

of one party against the other, then the integrity of the judicial 

branch is undermined? 

Mr. BRUCE. Of course. 

Mr. OSTERREICHER. Yes, but that’s a more subjective view depending on your point of view then. 

Mr. JOHNSON OF GEORGIA. Well, but judges should strive to avoid 

an appearance that they might be biassed in favor of one party? 

Mr. OSTERREICHER. Absolutely. 

Mr. JOHNSON OF GEORGIA. And this is the reason why judges, 

Federal judges, are bound by the code of conduct for United States 

judges—excuse me—for United States—yes, for the United States 

judges. Correct? 

Mr. OSTERREICHER. Yes. 

Mr. JOHNSON OF GEORGIA. Is to protect those ideals and to ensure that they abide by those ideals. 

But it’s troubling that U.S. Supreme Court justices are not bound 

by a—or by that code of conduct for United States judges. 

Do you have the same bad feeling about that that I and Professor 

Geyh have, Mr. Osterreicher? 

Mr. OSTERREICHER. I think that it should apply across the board 

to all the judges. 

Mr. JOHNSON OF GEORGIA. You, Professor Bruce? 

Mr. BRUCE. For what the opinion of a computer scientist is 

worth, yes, I do. 

Mr. JOHNSON OF GEORGIA. Well, tell me, is there any reason why 

there is some uniqueness of the United States Supreme Court justices that would exempt them from some code of ethics or code of 

conduct? 

And you’ve already answered that question, so let me—let me 

ask this: Professor Geyh, is there any reason—is there any constitutional basis that would prevent Congress from imposing upon 

the U.S. Supreme Court justices a rule that they abide by the code 

of conduct for United States judges, or that they write a code of 

conduct for themselves and abide by it? 

Mr. GEYH. Steve Gillers and I are both of the opinion that the 

necessary and proper clause, coupled with the power to regulate 

the appellate jurisdiction of the Supreme Court, gives this body the 

power to insist on a code of conduct. 

I think for those of us who are originalists, I think it’s useful to 

know, you know, that the original Congress was happy to identify 

how many judges that would have to be on the Supreme Court, 

when they would sit, where they would sit. It made them get on 

horseback and run around the country. 

And so against the backdrop of those early regulations, the idea 

that you would simply say, look, we want to make sure that our 

judiciary, as a condition of the appellate process, that our judges 

subscribe to basic ethical principles strikes me as being within the 

zone. 

I’m not sure—there might be a counter. There may well be others 

who disagree, but I think there is congressional power for that. 

Mr. JOHNSON OF GEORGIA. Thank you. 

Mr. Osterreicher, do you agree with that? 
59 

Mr. OSTERREICHER. I absolutely do. I think that, unfortunately, 

I believe what we’re seeing now is the Supreme Court promulgates 

its own rules. So that, I think, would be the explanation for why 

they don’t have rules that are in line with the other justices. 

Mr. JOHNSON OF GEORGIA. Well, I’m sure that justices, unlike 

judges, want to be judges of their own cases. And I think that 

whenever you have a justice that is solely responsible for judging 

an issue of recusal, then it diminishes the respect that people have 

for the court’s perception of abiding by the law and being 

unbiassed, impartial, and all the rest. 

And with that, I will yield back. Thank you. 

Mr. ISSA. I thank the gentleman. 

We now go to the gentleman from Idaho, Mr. Labrador. 

Mr. LABRADOR. Thank you, Mr. Chairman. Pleased to be joining 

this Subcommittee and look forward to talking about this issue and 

many other issues about the Federal judiciary. 

Mr. Osterreicher, I have a quick question. I appreciate your approach to transparency in the courtroom and the role that cameras 

and live streaming can play. I was actually a criminal defense attorney, and I practiced in Federal courts. I was also a law clerk in 

the Federal courts in Idaho, and I’m ambivalent and a little bit 

conflicted about having cameras. 

Because I do see—you just gave the example of the O.J. Simpson 

trial and then you mentioned how unfortunate it was that another 

trial didn’t have cameras because of how well it was conducted. But 

then that begs the question, was it properly conducted because 

there were no cameras in the—— 

Mr. OSTERREICHER. No, there were cameras, they just were 

closed circuit cameras. 

Mr. LABRADOR. Correct. Correct. Because they knew that they 

weren’t—it wasn’t a nationally televised circus that they were presiding over. So that’s the question that—and I’m not taking a position. That’s the conflict that I have, because I have seen how it has 

had a deleterious effect on some trials, and I think the justice was 

not served in some of those trials. 

Mr. OSTERREICHER. I think that, unfortunately, that atmosphere, 

in the O.J. trial, would have gone on with or without cameras. 

There was a whole lot more circus going on outside the courtroom 

when people—when both—all the parties went through the gauntlet of the media that was outside. 

I think, once again, it really shows that if the public—and, for 

example, the civil trial that followed regarding Mr. Simpson, again, 

there were cameras there. It was broadcast, and people got to 

watch that trial. There wasn’t a whole lot of commenting going on, 

a whole lot of spin as to what happened or what you just saw. 

I think we need to give the public credit, just as we have for 

them listening to the oral arguments the other day in the Ninth 

Circuit to be able to see and hear for themselves what went on. 

And that will also—— 

Mr. LABRADOR. And I don’t disagree with that. I have no problem 

with the oral argument in the Ninth Circuit. I actually enjoyed listening to it myself. 
60 

Do you believe that cameras should be allowed in all types of 

trial court proceedings, including criminal matters and preliminary 

matters addressed without a jury present? 

Mr. OSTERREICHER. I do, once again, within the discretion of the 

presiding judge. 

Mr. LABRADOR. How do you answer the concerns of those that 

suggest that broadcasting trials will have a chilling effect on whistleblowers and other possibly reluctant witnesses? 

Mr. OSTERREICHER. Once again, I would say this has been unfounded speculation for, you know, scores of years already. And 

there’s really no proof of that. 

In the New York 10-year experiment, they did four different 

studies where they asked judges, parties, witnesses, prosecutors, 

lawyers, to fill out forms, and both the empirical and anecdotal 

data show exactly the opposite happened where cameras were in 

the courtroom. 

Mr. LABRADOR. Professor Geyh, do you believe that the grounds 

for disqualification are well-stated in the statute? 

Mr. GEYH. Pretty well, yeah. They are mostly uniform across the 

country at this point. 

Mr. LABRADOR. To what extent, if any, have you seen or learned 

of attorneys using these sections of law to shop for more favorable 

judges? 

Mr. GEYH. It happens, but it is a very risky gambit. In other 

words, I think the opposite is almost more likely the case. In other 

words, lawyers think long and hard before they’re going to show up 

in front of a judge and point a finger in his face and say, you’re 

too biassed to sit, because more likely than not, the judge will say 

no, and then they’re going to have a case heard by a pissed off 

judge. 

Mr. LABRADOR. So, hypothetically, should a judge’s political leaning or proclivity for or against a certain political position be sufficient ground for disqualification? 

Mr. GEYH. No. 

Mr. LABRADOR. Your testimony recounts the procedural hurdles 

and resulting issues with employing section 144. Can Congress 

amend 144 so that attorneys could conceivably use it as a method 

for moving—of moving for disqualification of a judge? 

Mr. GEYH. It could. 

Mr. LABRADOR. How? 

Mr. GEYH. How could they do it? 

Mr. LABRADOR. Yes. 

Mr. GEYH. I think that I would recommend—— 

Mr. LABRADOR. Well, what changes do you suggest? 

Mr. GEYH. Well, I mean, I think I would borrow changes that are 

made in Alaska and Montana both have statutes, which essentially 

allows for substitution of judges. It’s a one-time only—a one-time 

only arrangement in which a party can request a different judge 

without making the allegation that the judge was biassed. And it’s 

judge shopping, but it’s a one-shot deal. 

And the word—you know, the word that I received when I was 

working this issue was that it cut way back on disqualification for 

cause later, so—and the people who use it like it. The people that 
61 

don’t resent it. The people who don’t use it, sort of, worry that it 

creates this judge shopping thing. 

But the people who use it, well, if that’s one way to preserve public confidence in the courts by a one-shot only deal, it will work. 

Mr. LABRADOR. Thank you. 

I yield back my time. 

Mr. ISSA. Did you mention also California has that—— 

Mr. GEYH. California—about 20 jurisdictions do, and most of 

them are in the West. And most of the ones that use it are pretty— 

are okay with it. Not all, but—I think mean, I think I’ve heard 

some judges complain, but it’s the ones that don’t use it that find 

it difficult to fathom. 

Mr. ISSA. Thank you. 

We now go to the gentleman from Florida, Mr. Deutch. 

Mr. DEUTCH. Thank you, Mr. Chairman. Mr. Chairman, I have 

very mixed feelings about today’s hearing. On the one hand, I 

agree—— 

Mr. ISSA. About the hearing or the subject matter? 

Mr. DEUTCH. About the hearing and the subject matter. I do 

agree that there’s a lot to be done and needs to be done to improve 

public access to the PACER service. As someone who has personally—has had the joy of muddling through PACER, I can see what 

a difference improvement would make, and I’m glad we’re having 

the opportunity to talk about that. 

Similarly, revisions to Federal court policy on cameras are long 

overdue as well. Policies prohibiting cameras in the courtrooms impose severe limitations on the public’s ability to observe court proceedings, interpreting laws that can impact the daily activities of 

every American. These restrictive broadcasting policies shroud the 

Supreme Court, and Federal court proceedings in secrecy and raise 

questions in the minds of the public on the administration of justice. 

You can walk into any State or Federal courtroom in America 

and see rows of benches or seats to accommodate public audiences 

interested in watching the legal proceedings. The U.S. Supreme 

Court also has public seating available to accommodate the lucky 

few courtroom seating for audiences recognizes and accommodates 

our Nation’s long tradition of public court watching. 

The U.S. Supreme Court and our Federal courts hear and consider some of the most important issues facing our country. The 

proceedings and the decisions issued from the proceedings by the 

Supreme Court and Federal courts impact every facet of lives of 

Americans. The Supreme Court and the Federal courts need to recognize and adapt to these changes to permit the next generation 

of court watchers’ access to proceedings on important legal issues. 

Such changes should include permitting television broadcasting. 

I’ve long supported the efforts of Mr. King, Mr. Nadler, and others in trying to open our Nation’s courts to public access through 

cameras with appropriate protections for the parties and judicial 

discretion ever-sensitive matters. It’s time that the Supreme Court 

and Federal court’s practices change. 

But I cannot help feeling the twinge of regret at the focus this 

week on judicial transparency and ethics when the executive 

branch had such glaring problems with both. 
62 

It doesn’t take a constitutional law scholar to see that President 

Trump should not continue to have an ownership stake in the company that bears his name. His family’s operation of the Trump Organization has already given foreign governments the opportunity 

to funnel improper payments through Trump hotels and golf 

courses and rental properties to curry favor with the Administration with no accountability to the American people. 

The complete inadequacy of President Trump’s approach to conflicts begs us here, the House Judiciary Committee, to investigate 

ethics violations of the President and his nominees. His choice to 

violate the Constitution and complete—and his complete disregard 

for the well-established norms followed by previous Administrations expose our democracy to potential foreign influence and to the 

risk that he will use the power of his office to divert the public good 

for his own private benefit. 

These, Mr. Chairman, I would respectfully suggest, are the most 

pressing issues of transparency and ethics facing our country 

today. 

But, since executive transparency and ethics falls outside the jurisdiction of the Subcommittee on the Courts, Intellectual Property 

and the Internet, and since this Committee as a whole seems 

fiercely determined to ignore our executive oversight responsibilities in the face of unprecedented threats by the Trump administration, I suppose the judicial transparency is the most we can hope 

for, and I am grateful for our witnesses for sharing their thoughts 

on this important topic today. 

And with that, I yield back. 

Mr. ISSA. The gentleman yields back. 

With that, we go to the gentleman from Texas, Mr. Poe. 

Mr. POE. Thank you, Chairman. 

Thank you all for being here. During my other life, I was a proud 

judge in Texas for 22 years. I tried only felony cases, everything 

from stealing to killing and everything in between. And I was one 

of the first, if not the first, trial judge in Texas to allow cameras 

in the courtroom. We had a very structured system where we had 

to—it was very discreet. The jury never saw the camera. 

The camera did not film the jury, did not film child witnesses, 

sexual assault witnesses, or any other witness that the lawyers did 

not agree should be filmed. And those that opposed that system, 

you know, said the world would end if we had cameras in the 

courtroom, where all lawyers would play to the cameras, and all of 

those things that—and no offense to the academics, but the academics were opposed to it, because they had never been in a courtroom and never had tried a case in their life, from either point of 

view. 

But none of that happened. Lawyers don’t play to the cameras. 

They play to the trier of fact, whether it’s the court or the jury. 

And we tried very serious cases, including death penalty cases, and 

we allowed cameras to film those cases. And it worked, and it was 

great for not just the public, but for law students and their universities to see those cases tried from gavel to gavel. 

And I’m a great fan of that, because we have the greatest judicial 

system in the world for determining guilt or innocence. No, it’s not 

perfect, but it is the absolute best that anybody has ever come up 
63 

with. And why would we not want the world to see it? And the public is stuck with a 90-second sound bite on the news by what some 

reporter thinks took place in the courtroom that day, whether it’s 

in a trial court or whether it’s in the Supreme Court, or appellate 

court, or a Federal District Court, because they are not permitted 

to see what took place in that courtroom. And I think it is shameful that the public cannot see that. 

So I am absolutely in favor of cameras in the courtroom, cosponsoring with Mr. Connolly a bill that would allow cameras in the Supreme Court unless the court decides due process would be violated. There are other bills. Mr. Nadler has a bill that’s even more 

progressive, if I could use that word—than—— 

Mr. NADLER. All right with me. 

Mr. POE [continuing]. If it’s all right with you, Mr. Nadler—than 

just the Supreme Court to let Federal courts be open. I think that 

the recent case of the—that was in Seattle, before a Federal court, 

would have been a perfect example of allowing that case to be 

heard with a camera in the courtroom and let the public see for 

themselves, without having to rely on the news media’s 90-second 

sound bite, as to what took place in that courtroom. 

Mr. SWALWELL. Would the gentleman yield? 

Mr. POE. Yes. 

Mr. SWALWELL. Judge, I appreciate your thoughts and personal 

experience on this. Could you share what you did in the courtroom 

to protect—if there was a sexual assault victim or a victim who had 

been threatened by the defense? Because I share a lot of your beliefs here, but was wondering what you did in your personal experience presiding over the court to protect those victims? 

Mr. POE. If there was a—reclaiming my time. 

If there was a sexual assault victim, that victim was not televised in the courtroom. That was the rule. Sexual assault victims 

are never televised. And only the audio sometimes was allowed, but 

only by agreement of the prosecutor and the victim and, of course, 

the defense attorney. But the video was never televised in those 

cases. 

And child witnesses—the same was true with a child witness, 

never a child witness. Even if it was not a—the witness was not 

a victim, the child witness was never televised as well. 

And so we had certain rules. And the media abided by those 

rules. We never had a problem with the media violating the rules. 

They knew they—there were consequences. They might be in jail 

if they violated the rules. We never had a problem with it. 

So it worked out very well. We went through all of the so-called 

problems, and I was impressed, really, how smoothly all of that 

worked. 

Mr. JOHNSON OF GEORGIA. Mr. Chairman, by unanimous consent 

I’d ask that the gentleman be granted an additional minute to conclude his remarks. 

Mr. ISSA. Without objection. 

Mr. POE. I thank the Chairman. 

Anyway, I will get to a question in a minute—in less than a 

minute. 

So it’s just, I think, in this day and time, and has been said by 

many people, that we show the world that the most important 
64 

court in the world, the Supreme Court of the United States, where 

you can go and sit—but you can’t sit but 15 minutes until they kick 

you out and bring in another bunch of folks. Because that’s their 

rule over there. You can’t watch the whole trial unless you’re on 

this side of the bar—that they get to see everything that takes 

place in the Supreme Court. I think it would be of tremendous benefit to law students to see that and to lawyers, God bless them, let 

them see what takes place before the Supreme Court and, of 

course, the public as well. 

Mr. Osterreicher, would you agree with that—that scenario or 

not? 

Mr. OSTERREICHER. Oh, I would absolutely agree. I commend you 

for your progressive attitude. I’m admitted to the Supreme Court. 

And we have filed amicus briefs in a number of cases. I’ve appeared for oral arguments in those cases, and I just sit there and 

shake my head at the fact that there’s only about 300 people in 

that room that get to see what goes on in that courtroom. We’re 

seeing people, you know, pay a lot of money for somebody to hold 

their place to get a spot in. 

But in terms of the snippets, that’s the other thing that was always a contention. Well, you’re only going to show a small part of 

the trial or a 15-second sound bite. The fact is that nowadays with 

live streaming, with the fact that not only live streaming on the 

internet, but by broadcast websites, by print websites, you can 

have the public be able to see the whole trial for themselves. Yes, 

we’ll still be relegated to a small part on the news, but right now 

the public has no other opportunity to see what goes on in the 

courtroom other than that snippet where cameras are allowed. In 

this case, with live streaming, I think that will be available for everybody to either watch live or watch later. 

Mr. POE. I thank the Chairman for the extra time. 

Mr. ISSA. You can thank Mr. Johnson. 

Thank you. The gentleman yields back. 

We now go to the gentleman from New York, Mr. Jeffries. 

Mr. JEFFRIES. I thank the Chairman for yielding and for convening us here today. 

I thank the panel for the information that you’ve presented for 

your expertise, for your presence here today. This certainly, is an 

otherwise important topic, although I would suggest that the timing of this hearing is a bit perplexing. There is a swamp of corruption that’s percolating at 1600 Pennsylvania Avenue. The national 

security adviser has resigned in disgrace. Our national security has 

been placed in jeopardy as a result of the Trump administration 

continuing to play footsie with Vladimir Putin and the Russians. 

It’s impossible to figure out where the Trump family business ends 

and the White House begins. 

The President himself is a living, breathing, conflict of interest. 

Seventeen different intelligence agencies have concluded that the 

Russians interfered with our election in order to help Donald 

Trump, and yet, we’re here today talking about the PACER system. 

It just seems to me that there are more pressing issues related to 

the existential threat that this Administration presents to our democracy that we could be spending our time on. 
65 

Now, we have a President who is in the illegitimacy business. He 

peddles illegitimacy with all the viciousness of a street corner dealer. He spent 5 years perpetrating the racist lie that Barrack 

Obama was not born in the United States of America, trying to undermine the legitimacy of a duly elected and re-elected President. 

He regularly attacks the legitimacy of the news media, the socalled fourth estate, which is essential to the constitutional fabric 

of our democracy. It’s why we have a First Amendment. He has 

questioned the legitimacy of the intelligence agencies that now report to him. I wonder why? And he’s also gone after the legitimacy 

of the judiciary. 

And so to the extent we’ve got the expertise available on this 

panel to deal with that issue, Professor Geyh, let me ask a question. You state that the survival of our courts depends upon the 

perceived legitimacy with the people in this country that they 

serve. Is that correct? 

Mr. GEYH. Yes. 

Mr. JEFFRIES. And is that largely because members of the judiciary are appointed and they’re not elected and, therefore, they derive any respect and legitimacy that they have from the factors 

that you’ve set forth as it relates to their competence, integrity, 

and independence? 

Mr. GEYH. In part. I mean, part of it also is that every branch 

of government, really, does have the power to bring the other 

branches of government to their knees unless they believe in it. 

And to the extent we lose faith in the judiciary, there’s no incentive 

not to abuse the other branches. 

And so part of it is that the judiciary is uniquely vulnerable, because they aren’t elected and don’t have that reservoir of legitimacy 

from the electorate. But the other part of it is that in the absence 

of that legitimacy, the President and the Congress, both, can essentially delegitimize the judiciary themselves. 

Mr. JEFFRIES. Donald Trump recently attacked a member of the 

Article III judiciary as a so-called judge. Is that correct? 

Mr. GEYH. Correct. 

Mr. JEFFRIES. What exactly is a so-called judge in your view? 

Mr. GEYH. The reason I look at that as different than just robust 

criticism, it is implied—it implies that this is not a judge at all. 

This is someone masquerading as a judge, who is undeserving of 

our respect. And when you combine that with the statement later 

that if they want our respect, they will simply do what we want 

them to do, that tells me that I don’t want an independent branch 

of government. I want someone who will simply do my wishes. And 

that worries me. That to me, delegitimizes the judiciary as a separate and independent branch of government. 

Mr. JEFFRIES. It’s amazing to me that we have a President who 

was helped by the Russians in terms of his election. The FBI director interfered in an unprecedented fashion. He benefited from the 

fake news industry throughout the election. He didn’t win the popular vote. He lost the popular vote. A majority of the Americans 

didn’t vote for him. They voted against him. 

The Administration is now shrouded in scandal, and he calls an 

Article III member of the judiciary a so-called judge. It’s shameless, 
66 

and this Committee needs to do something about these independent attacks on the judiciary. 

I yield back. 

Mr. ISSA. If the gentleman would yield? 

Mr. JEFFRIES. Certainly. 

Mr. ISSA. I’m going to associate myself with one part of what you 

just said, and that is that I don’t believe we should ever use terms 

about judges that question their competence or integrity in—on 

this Committee unless we have a reason or anywhere else. 

I will say that perhaps we all should entertain not delegitimizing 

the other branches except where we have a specific claim and in 

that venue. But I do want to share my—appreciation that we do 

need to all raise the standard of how we deal with the court, how 

we refer to differences, and how we believe something should have 

been decided or how they believe it. 

I want to share that, because I think that—although I didn’t necessarily associate with everything you said, I think it’s important 

that this Committee, as we look at judicial responsibility, that we 

not disparage the court, which as you say, has generally done an 

extremely good job of delivering honest representation through the 

Federal court system. 

I thank you. 

Mr. JEFFRIES. I thank the Chairman for his remarks. 

Mr. ISSA. Thank you. 

We now go to Mr. Biggs, who has been patiently waiting. 

And I want to apologize to you. I got a mixed signal, so you, actually, should have been before Mr. Poe, but I’m sure he appreciates 

your indulgence. Thank you. 

Mr. BIGGS. Thanks, Mr. Chairman. And Mr. Poe can go before 

me any time he wants. 

And I appreciate the subject for the hearing today, and I appreciate those who are here on this panel testifying today. I appreciate 

you being here. 

You know, what I find interesting is that tensions, actually, between the three separate branches of our government are nothing 

new. Indeed they’ve been present in America since its inception. In 

fact, the very famous first case that laid the foundation for judicial 

review, Marbury versus Madison, arose specifically because of that 

tension between the executive branch and the judicial branch at 

that time. 

So I think it’s interesting to be—hear folks be critical of the current executive because of comments that he made with regard to 

the separate coequal branch of government. But it’s not new, these 

types of discussions, whether it be Andrew Jackson or Thomas Jefferson or FDR’s idea of packing a court, increasing the number of 

justices so you can get a desired outcome. This kind of tension is 

not new. It is as old as the republic is. 

Mr. SWALWELL. Would the gentleman yield? 

Mr. BIGGS. I haven’t finished my statement yet. I’d like to finish 

my statement. 

Mr. SWALWELL. Would you yield after? 

Mr. BIGGS. I’m not yielding yet, so hold your question. 

Additionally, when we look at the Article III branch of particularly the Federal judges here that we’re talking about, many refer 
67 

to them as being lifetime appointments, but in fact, that is only the 

de facto arrangement that has emerged and evolved over time. The 

actual language of Article III, section 1 says that they will hold 

their offices during good behavior. 

And so, really, what we’re talking about today, when I hear the 

testimony—and I appreciate it, because we’re talking, really, in my 

opinion, about transparency and getting—having practiced law and 

having tried many cases, there is a certain mystery that kind of 

shrouds what goes on in the courts, and whether it’s the broadcasting of court cases, whether it is the idea of making the PACER 

system more accessible to the public, whether we’re talking about 

the ethical determination and processes within the courts themselves, I think those are really important issues to be sitting and 

discussing today. 

And that’s why I’m grateful that you’re here and grateful for the 

Chairman for organizing and conducting this Committee hearing 

today. 

So my question would be—for Professor Geyh is: As we look at 

this, what do you see are the real checks for the legislative branch 

on the judicial branch? 

Mr. GEYH. The checks include the 100-ton gun, as it’s so-called, 

is impeachment. You do have a check. You control the judiciary’s 

budget. You control the lower court’s jurisdiction. You are enabled 

by virtue of the fact that you have the discretion to establish courts 

that implies a lot of regulatory authority over things like a disciplinary process. And so because you can, theoretically, disestablish 

courts, you can regulate them in between. And so—and so there 

are all kinds of powers that can be used. 

And, you know, getting back to the point you made before, I 

think it’s an important point to recognize, that there’s very little 

new under the sun, but that it’s also true that we have a constitutional crises every now and then. That’s not precedent for it being 

a good thing, it’s just a precedent for it happening. 

And one of the great things about our system of democracy, I 

think, is that we have—we know when to hold them and when to 

fold them. We know when to stay our hand and when to get aggressive. And I think that having all of these powers used wisely 

has kept us going as long as it has. 

Mr. BIGGS. Thank you. And I—thank you, Professor Geyh. And 

I agree with you that there are a series of checks that the legislative branch has, and I’m not sure that we exercise those too often. 

But I think the discussion today with regard to disciplinary process 

that needs to be put in place, and maybe we discuss that with the 

U.S. Supreme Court itself, I think that is integral to exercising the 

article empowers—the checks against the courts itself. 

Mr. GEYH. Fair point. Certainly, the inquiry is a fair one, yes. 

Mr. BIGGS. So in line with that, when we start looking at transparency. And I think I’m just about out of time, but, Mr. 

Osterreicher, I was going to ask you, I want to know how we get 

access to the broadcast, and if that—in the 10-year study in New 

York, how was that made available? 

Because it seems to me that as you’re broadcasting, you are creating a separate record that is going to be relevant to any kind of 
68 

appellate procedures when you’re videotaping and recording lower 

court proceedings. 

Mr. OSTERREICHER. Well, I think right now what we’re seeing, at 

least at the Federal level during the pilots, is that they were operating the equipment rather than the media. So that becomes part 

of their—— 

In the Ninth Circuit, they have their own YouTube site. I would 

assume that they are retaining those records as public records. 

During the 1987 to 1997 10-year experiment, it was prior to live 

streaming, and, really, the only time you would get anything was— 

was that broadcast unless you’re actually recording videotape of it 

as well for later broadcasts. 

Mr. BIGGS. Thank you, Mr. Chairman. 

Mr. ISSA. I thank the gentleman. 

We now go to the also very patient, Mr. Swalwell of California. 

Mr. SWALWELL. Thank you, Chairman, for this important hearing. And I will go back to the gentleman, Mr. Biggs, and ask—and 

I would yield to him, do you agree with Judge Gorsuch that it was 

demoralizing for President Trump to call the judge in Washington 

a so-called judge? 

Mr. BIGGS. Mr. Chairman, I will take the time. 

Thank you so much for yielding time to me. 

On that specific issue, I don’t know what—apparently, Judge 

Gorsuch was demoralized. I don’t know who else might have been 

demoralized. I don’t know anybody else who might have been demoralized when Members of Congress say this President’s—— 

Mr. SWALWELL. I’ll reclaim my time, and I’ll ask again, do you 

believe that it’s demoralizing to call a judge a so-called judge? And 

I’ll yield to the gentleman. 

Mr. BIGGS. Thank you. And hearkening back to my trial court 

days, I’ll say that I’m not sure that’s relevant to anything what I 

specifically think on this. But you’re asking a really broad question, 

and so I will tell you that I think that there are probably some 

judges that are more sensitive than others. 

Mr. SWALWELL. I’ll reclaim my time. 

Mr. BIGGS. Some may be demoralized and some may not be, I 

don’t know. 

Mr. SWALWELL. I was a trial court prosecutor and look forward 

to working with the gentleman on this issue, but I guess I’ll ask 

Mr. Geyh, you said, ‘‘We believe in the tripartite system of government that our Founders frame. We believe that the checks and balances that systems provide and the role that a strong separate and 

independent judiciary plays in keeping the executive and legislative branch in check.’’ 

So I guess I’d ask each person: Do you believe that calling a Federal District Court judge a so-called judge is respectful or disrespectful? 

Mr. Osterreicher? 

Mr. OSTERREICHER. I’m not sure that I’m going to be the one 

qualified for this. The only analogy I will draw is, this weekend I 

judged a moot court contest for law students, I was the presiding 

judge. I called myself the so-called judge only because I wasn’t one. 

So I think using that reference to an actual judge is—certainly, 

calls into question why anyone would do that. 
69 

Mr. SWALWELL. Sure. 

Mr. Bruce, respectful or disrespectful? 

Mr. BRUCE. I would consider it, again, for what the opinion of a 

computer scientist is worth, I would consider it disrespectful. 

Mr. SWALWELL. Thank you. 

And Mr. Geyh? 

Mr. GEYH. My testimony would suggest yeah, I don’t think it’s 

respectful. 

Mr. SWALWELL. And how about your home State judge, Judge 

Curiel, being referred to as not being able to be impartial because 

of being a Mexican American? 

Mr. GEYH. He’s actually an alum of our law school as well. My 

concern there—I mean, to be clear, I’m less concerned about whether you’re respectful than I am whether you are attacking the integrity of the court itself. And when you’re implying that someone is 

incapable of rendering impartial justice because of the color of their 

skin, I think you’ve got trouble. That’s more than disrespectful. 

I think, similarly, calling someone so-called, I mean, it’s a 

snippet. It’s a tweet, but it’s what we have to work with. It’s trouble. I’m not going to go so far as to say it’s the end of the world, 

but it is indicative of a larger problem that attacks the legitimacy 

of the court, and that’s what worries me. 

Mr. SWALWELL. Thank you. I want to go to the purpose—one of 

the purposes of the hearing. And after practicing in trial courts for 

7 years, I’ve given a lot of thought to the O.J. trial. I was 13-yearsold as I watched that unfold, and just like most of America, could 

not believe that he was acquitted. But as time passed by and as 

I spent time in a courtroom and I watched the recent documentaries—Mr. Osterreicher, do you think that—and this is quite an 

existential question, I guess, but do you think had there been cameras on the streets for the police officers of Los Angeles in the 

years leading up to the O.J. trial, do you think that would have actually been more informative, and that would have held them to account rather than folks blaming the cameras in the courtroom as 

being the reason that he was acquitted? Do you understand the 

question? 

Mr. OSTERREICHER. I’m not quite sure I do. 

Mr. SWALWELL. If the police officers had body cameras, and there 

was more transparency on those officers at that time, do you think 

that may have been more helpful and brought them into account? 

Because it seems to me that it wasn’t the cameras in the courtroom 

that poisoned the jury, that it was really that there weren’t cameras in the streets and that police officers in Los Angeles weren’t 

being held accountable and their credibility was devastating. 

Mr. OSTERREICHER. I think it may, but the fact was that most 

officers that responded to that crime scene were detectives. And at 

least as we see it now, only patrol officers are wearing body cams. 

So I think even if the program was fully implemented, I highly 

doubt that those detectives would have be wearing body cams. But, 

certainly, it would have helped to see who went where and did 

what with evidence collection. 

Mr. SWALWELL. Thank you. 

Mr. ISSA. Would the gentleman yield? 

Mr. SWALWELL. Yes. 
70 

Mr. ISSA. I want to engage in a quick colloquy, because—do you 

think that, perhaps, politicians have gotten in the habit of—that 

extends between each other and then, you know, flows over into 

Article III? 

You weren’t here, but when I came to Congress, it was popular 

for many people to say that President Bush was an appointed not 

an elected President. Many people didn’t come to his inauguration 

for that reason. 

Obviously, here, today, we had a Member on the dais cite 

delegitimizing President Trump because he didn’t win a majority, 

and because of ‘‘Russia’’ getting him the election. Is it, perhaps, 

just a spillover, and is it something that all of us, executive branch 

and here in the House and Senate, need to get out of the habit of 

delegitimizing ourselves, and thus, spilling over into Article III? I 

just wonder if you thought about that. 

Mr. SWALWELL. Reclaiming my time. And I appreciate the question. 

I guess the prosecutor in me says, just stick to the evidence. If 

you follow the evidence, you’ll find the truth. 

I yield back. 

Mr. ISSA. The gentleman ends with a good yield back. 

We now go to the gentlelady from California, Ms. Lofgren. 

Ms. LOFGREN. Thank you, Mr. Chairman. 

I, actually, agree that it seems a little out of body to be discussing the PACER system when the national security adviser resigned and people are questioning what did the President know 

and when did he know it. But that’s what we’re doing here, and 

so that’s what I would like to pursue, which is the PACER system. 

Professor Bruce, 10 years ago there was a pretty comprehensive 

privacy audit that academics performed on the PACER system, and 

they found that there were Social Security numbers included in the 

records. The audits were sent to the 31 district courts, administrative office of the courts, judicial conference, and the like. However, 

it’s my understanding that despite those findings, you still have Social Security numbers scattered throughout the PACER system. 

The technology of the systems is a little bit bulky, and I’m wondering if you have observations on what steps could be taken to redact sensitive information in the system or whether we might be 

well-advised to take up some of the private sector offers to take the 

data and maybe use better technology and as a condition of doing 

that, providing it for free to the public to redact sensitive information? 

Mr. BRUCE. Let me make four points, actually, around the whole 

privacy issue. This is one of the places that has suffered the most 

from the inability to do comprehensive research across the entire 

system. If there were bulk access to the data, you would certainly 

have a lot better eyes on what was going on there. 

Secondly, just as with the problems of privacy that surround 

cameras in the courts, this is a problem that’s unevenly distributed 

across the courts, so it’s sort of—sort of hard to know where to 

look. 

We know from experience that a lot of this stuff can be very easily dealt with in software. It’s been done in other jurisdictions. 

Mostly on something like Social Security numbers, that’s going to 
71 

be an easy problem to solve, because they are very easy to identify. 

There are harder problems and some that are completely 

insoluable. As for example, when you have a victim of domestic violence named as a 39-year-old school teacher from Gordon, Nebraska where there is maybe one 39-year-old school teacher. That, 

you’re never going to get rid of. 

In smaller jurisdictions in Canada and Australia, this has been 

done successfully with automation or more accurately automated 

support for some editorial redaction for a considerable period of 

time, at least 10 years or 15 in the case of Canada, shorter time 

in Australia. Should we take outside offers to do that? Yes, if 

they’ve got the technology, absolutely. 

Ms. LOFGREN. Let me ask you something that’s always bothered 

me. You can get some documents for free, but you have to create 

an account, and the account actually asks for your full name, your 

address, your phone number, your email address, your date of 

birth. It seems to me rather intrusive to have to provide all that 

information to get access to data that, really, the public should 

have. 

Mr. BRUCE. That seems intrusive to me, too. 

Ms. LOFGREN. I think—you know, what I’m interested in, Mr. 

Chairman, from this hearing is what steps we might take to recommend changes in this system. 

First, I don’t think we’re ever going to get the technology upgrades we want in the current system. I think we ought to aggressively and systematically pursue private sector options that would 

allow free access to this data that is not—that provides adequate 

privacy protections for individuals whose presence is revealed in 

the documents and that provides it on a basis that is not intrusive 

for the public that should have every right to see this information. 

Mr. BRUCE. If I may, this circles back a bit to the question that 

Mr. Nadler asked me earlier. If you look at the 2015 report from 

the AO on development of the NextGen system, it was actually a 

journal article that was published by the two senior designers, it’s 

very clear from that that very, very little consideration was given 

to, really, any outside source of information beyond the judges who 

were—who were serving on the, you know, sort of, the media customer committee. 

And that, in fact, the AO completely dismissed the recommendations of Mider Corporation, which is a very well-respected consulting group for this kind of judicial administration. 

So I don’t think I—I agree with you. I don’t think we could expect a good deal of receptivity from the AO. 

Ms. LOFGREN. Well, I would just say, I respected the judges for 

their insight into the law more than I respect the judges for their 

technology expertise. 

And I would yield back. 

Mr. NADLER. Mr. Chairman—— 

Mr. ISSA. Yes. For what purposes does the gentleman seek to be 

recognized? 

Mr. NADLER. Mr. Chairman, I ask unanimous consent that the 

gentlelady from Texas, who is a Member of the full Committee but 

not of the Subcommittee, be permitted to ask questions? 

Mr. ISSA. Without objection, so ordered. 
72 

The gentlelady from Texas is recognized. 

Ms. JACKSON LEE. Let me thank the Ranking Member and the 

Chairman for their extended courtesies for a very important hearing. 

And thank you, gentlemen, for your testimony but also for your 

advocacy. 

I am going to follow a certain line of questioning, but let me give 

a question for a premise upon which it is based. I happen to be a 

member of the Bar. Sometimes we humorously ask which one, but 

I’m a member of the Bar and came through law school at the time 

that this was of great high honor. 

And the whole idea of the sanctity of the Constitution and the 

strength of the Constitution was very much enshrined, if you will, 

in our law school, but more importantly, it was a document that 

we held with the highest of esteem and thought as we graduated 

we were going to be advocates, the single sponsors of the value of 

the Constitution to the American public or to our immediate constituencies, and at that time, we were not elected persons but just 

those who had graduated from law school. 

With that in mind, Professor Geyh, I would like to go on a line 

of questioning that the other gentlemen made comment on, but I 

know that the issues that they are advocating I am very much familiar with, and I believe in their advocacy. 

The good news about what has happened over the last couple of 

weeks has been the increased, by the American public, of understanding civics, understanding their government, understanding 

what role their government plays. And I’ve enjoyed speaking about 

the three branches of government; the judiciary, the legislature, 

and the executive which by the Constitution three equal branches 

of government. I love saying that. 

We saw one episode with President Nixon in the Saturday night 

massacre and Elliot Richardson deciding to go a different way, then 

Attorney General of the United States. So because the American 

public’s eyes are on all of us, I think it’s important and as much 

as we can to be on our best behavior, but also to share with them 

some of the responsibilities that we have as a legislature, judiciary, 

and, of course, the executive. 

So I’d be interested—I’m starting, first, with Mr. Miller’s comments that were made over the weekend, Steve Miller, who indicated the executive power is all one singular and without any possibility of oversight or questioning. I think many of us took a step 

back, step to the side, and were either aghast or were trying to 

struggle with the Constitution or court precedent to find out what 

the basis of that was. 

I’d appreciate your comment on that. And also appreciate the fact 

that the judiciary, likewise, does not have the authority to reach 

beyond its boundaries, to rule in a way that would skew the rights 

of the American people. They have—they interpret the law. And so 

I would love for you to, with this whole concept of transparency but 

also the judicial ethics as well, give the boundaries of the judiciary. 

And I’m, obviously, speaking about the Federal judiciary. 

And then I’d appreciate as well that if American people—the 

American people, probably have not paid attention to the judiciary 

except for—let me not suggest that they’re not engaged, but I was 
73 

a judge in the municipal court, so except for their coming before 

municipal judges dealing with their citations or they may be in 

court for their own personal matters, now we’ve open the door for 

them to appreciate the value of this Nation. 

What happens to their attitude about the courts and judges if— 

and I’m sure some of my colleagues raised this, if so-called judges, 

if he’s a Mexican judge, so he has to be biassed? We are held together in this country by our adherence to the principles of our underpinning documents. 

I yield to you, Mr. Geyh. 

Mr. GEYH. This is a teaching moment. I think it—it is—the 

events, to me, had been troubling, but they offer an opportunity to 

talk to be people the way you describe. I think it’s important to understand that—you know, earlier—earlier, I think it was Mr. Biggs 

who spoke, one spoke in terms of Marbury versus Madison being 

the first point at which judicial review was brought into the conversation. 

But, in fact, it predated the formation of the Constitution. The 

judiciary has long been understood to have these powers to hold 

the other branches in check through the use of judicial review, 

through, you know, independent assessment of the law. 

And when a member of the Administration stands up and says 

what the President says goes and implies that its power is absolute, I think it raises a flare for me, because it suggests that, first 

of all, that he doesn’t understand the way the system works and 

that he is counting on people he is talking to not understanding the 

way the system works, and not understanding the judicial review 

is not just a bunch of people having second opinions. 

They have a different role to play that—you know, throughout 

this conversation about whether the judges overreached in this scenario, I never once heard any discussion of the actual constitutional issues that were in play. This was all about judges overplaying their hand simply because they disagreed with the President. And I think this is a moment for all us to stop and say this 

is how the system works in very simple ways. 

And honorable and men and women of integrity have a right to— 

not a right—have a duty to look at the law and decide how it goes. 

And you, in this room, have a right to criticize those decisions and 

say it is wrong during part of this public dialogue. But that stops 

short of saying: Because I disagree with you, you are illegitimate. 

Because I disagree with, you are someone who should be ignored 

or marginalized. And that is what worries me, that line between 

vigorous disagreement and delegitimization. 

Ms. JACKSON LEE. Anyone else want to comment? Any anyone 

else? 

All right. Let me thank—let me thank you very much. And might 

I, Mr. Chairman, just finish on this note. This is the body of people 

that will be dealing with these issues for a period of time, and I 

think this hearing, and to the Ranking Member, is a potent hearing, and I hope that as we go forward, we will understand that protecting these three branches of government is a bipartisan effort 

and we should strongly do so, as well as utilize our investigatory 

powers in ensuring the integrity of all aspects of government. And 

I hope we will be doing that for the American people. 
74 

I yield back. Thank you. 

Mr. ISSA. I thank the gentlelady. I thank you for coming over and 

participating today. It was a welcome addition. I am going to try 

to close. Hopefully, I won’t open any new wounds as I do it. 

But, Professor Geyh, at the end, I detected something that I 

would like to not rebut but to add on to. You know, you talked 

about the executive branch feeling like, in national security, they 

had such broad powers as to not be questioned, and that is a debate that is not new. I have never seen a President who believed 

the War Powers Act actually affected them. The moment they get 

sworn in, it seems like that—you know, even if they were a former 

Member of this body, they move beyond that, so that is not uncommon. 

But the court, the Ninth Circuit, does seem to have taken what 

it has been used to, and I live in the Ninth Circuit. It has been 

used to questioning the process of—in civil rights cases, of what intent is. So if—if somebody—if somebody’s motives are not pure, 

then the law, even if perfectly written, is invalid in the Ninth Circuit. That is—they haven’t been sustained very often when going 

to the Supreme Court, but they have had that view. 

And in this case, it appears to me, as a bit of a layperson far removed, that they are doing the same thing in that they are determining that the President’s statements and/or motives, in fact, are 

justification to overturn his ban not on the letter of it, not on the 

statute but, in fact, on his motives. 

Would you agree that they have—they have taken that liberty, 

whether it is theirs or not, but they certainly indicated it. 

Mr. GEYH. I have no opinion on that, but—— 

Mr. ISSA. You don’t have an opinion on what the Ninth Circuit 

did? 

Mr. GEYH. I don’t—I have not studied the opinion in detail sufficient to draw that conclusion. 

Mr. ISSA. You heard their words. 

Mr. GEYH. But I don’t disagree with you. I just have—I don’t disagree with you. I am not challenging it. I am simply saying that 

I don’t—— 

Mr. ISSA. Did either of you listen to the court review? Because 

I mean, I certainly heard it pretty loud and clear that they believe 

that they can judge the intent of the President in crafting something as invalidating it, regardless of the words. And I know that 

is not your subject expertise. 

Mr. OSTERREICHER. If I may. I mean, at least in my listening to 

it, I think the court was trying to get evidence. I think they were 

listening to the government’s side saying, no, this wasn’t our intent, and then they looked toward the President’s statements as 

being evidence of some intent. Whether or not that comes into play, 

as you said, in terms of the law versus the facts, obviously, we will 

see. 

Mr. ISSA. And I do look forward to this, the case going to the 

court on—to the Supreme Court on that. Yes. 

Mr. NADLER. Mr. Chairman, strike the last word. I would simply 

point out, first of all, the court, the—neither Judge Robart nor the 

Ninth Circuit decided the case. They were ruling on it on a temporary restraining order in which you don’t go through all the evi-
75 

dence and make determinations, but you do say, well, who has a 

likelihood of prevailing on the merits, and as a matter of equity, 

who, in balancing the equities, who would be harmed if we let it 

stand or not stand. On that basis, the Ninth Circuit, I think, had 

ample reason to rule as it did because there had been no evidence 

showing harm if they overthrew it and plenty of evidence, obviously, the plaintiffs would be harmed if they didn’t. I shouldn’t say 

overthrown. Stay it. 

And in terms of the constitutionality that you were referring to, 

they didn’t make a finding. They couldn’t until after the hearing, 

but they said there is a—not a possibility—likelihood of success on 

the merits, and they did look to intent there, which at this stage 

of the game they should. 

Mr. ISSA. Well, and I am not in a position to agree or disagree. 

I was asking the question because the Ninth Circuit does look to 

intent. They have even overturned—they have overturned laws 

that were written in which a witness who came before the body 

that wrote the law, city council, the witness said something which 

they said went to intent. In other words, a tainted witness thus 

taints the decision of it. And it is—in looking at city council’s laws, 

that may seem fairly benign, but in looking to a President who is 

entitled to, essentially, a right to privacy of his thoughts in deliberation and executive power, it will be interesting to see it before 

the Ninth Circuit. 

I would like to quickly close—and I appreciate your input on 

that—and try to summarize what I think I have heard here today. 

And, Mr. Osterreicher—I apologize. I have not gotten your name 

right once, but I have noticed it has been said several different 

ways. 

Mr. OSTERREICHER. Just don’t call me late for dinner. 

Mr. ISSA. I think—I think the one thing, without calling you late 

for dinner, is that you have got agreement that there has been no 

showing that convinced anyone here at the dais that there is a reason not to video capture appellate activities broadly, which would 

potentially include the Supreme Court, but clearly would include 

all of the circuits. So I think you walked away today making your 

case for that. Obviously, I think it is fair to say there was less 

agreement as we got down to witnesses and victims and so on. 

Professor Bruce, I think you made a compelling case. The only 

thing that I didn’t hear was an oddity that is unique to this Member, and that is, that we have required the Administration, under 

the DATA Act, to put all information in machine-readable format. 

And one of the interesting things about PACER is, even if they 

handed you all the information, in order to make it usable to a 

broad public, it would have to be converted into machine readable 

with metadata attached. Isn’t that true? 

Mr. BRUCE. That is true. And frankly, I chose not to approach 

that issue today because I thought it was a bridge too far, but it 

is absolutely the case that it would need to be put into XML to be 

maximally used. 

Mr. ISSA. Well, and I waited till the end to cover this because it 

is my intent to offer legislation that expands the DATA Act, which 

Senator Warner and I were the original authors of, to include Arti-
76 

cle III with the recognition that they have broad authority that 

does not happen to be one that is exclusive to them. 

And so I will be offering that again with Senator Warner as a 

Senate companion for just that reason, that the bridge too far is, 

no matter what they do, the information they have is not currently 

as valuable as it should be. 

Mr. BRUCE. That’s correct. Thank you. 

Mr. ISSA. And I think when it came to the questions of integrity 

of the court, although it was—there was a considerable discussion 

about the so-called judge comment, I think you made a compelling 

case here that it is a fragile court that even a 140-character statement by one individual, who happens to be the President of the 

United States, can have an effect on a court as can a question of 

whether this 80-year-old judge is competent, as is this judge biased, as is does the court system hold its own accountable, as is 

the question of whether or not there is a recognition of the financial holdings in some format of the—of members of the court as 

there are in the other two branches. 

And so I think you made a good case that we will follow up on 

that we need to work with the court and/or work with our constitutional powers to add those so that no one can second-guess the 

court in those areas, which I think is a particularly important area, 

and I think you made a good case on it. 

I would recognize Mr. Nadler if he had any other closing comments. 

Mr. NADLER. No. 

Mr. ISSA. Hearing none, I want to thank all of you. We will keep 

the record open for 5 days. If you have additional comments or 

thoughts afterwards, we would accept them into the record. 

And with that, we stand adjourned. 

[Whereupon, at 12:18 p.m., the Subcommittee was adjourned.] 

Æ