FINANCIAL SERVICES AND GENERAL 

GOVERNMENT APPROPRIATIONS FOR 2009 

HEARINGS 

BEFORE A 

SUBCOMMITTEE OF THE 

COMMITTEE ON APPROPRIATIONS 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

SUBCOMMITTEE ON FINANCIAL SERVICES AND GENERAL GOVERNMENT 

APPROPRIATIONS 

JOSE ́ E. SERRANO, New York, Chairman 

CAROLYN C. KILPATRICK, Michigan 

C.A. ‘‘DUTCH’’ RUPPERSBERGER, Maryland 

DEBBIE WASSERMAN SCHULTZ, Florida 

PETER J. VISCLOSKY, Indiana 

ROBERT E. ‘‘BUD’’ CRAMER, JR., Alabama 

MAURICE D. HINCHEY, New York 

ADAM SCHIFF, California 

RALPH REGULA, Ohio 

MARK STEVEN KIRK, Illinois 

RODNEY ALEXANDER, Louisiana 

VIRGIL H. GOODE, JR., Virginia 

JO BONNER, Alabama 

NOTE: Under Committee Rules, Mr. Obey, as Chairman of the Full Committee, and Mr. Lewis, as Ranking 

Minority Member of the Full Committee, are authorized to sit as Members of all Subcommittees. 

DALE OAK, BOB BONNER, KARYN KENDALL, and FRANCISCO CARRILLO, 

Subcommittee Staff 

PART 6 

Page 

Federal Judiciary .................................................................... 1 

Supreme Court ......................................................................... 101 

District of Columbia ............................................................... 133 

( 

U.S. GOVERNMENT PRINTING OFFICE 

42–830 WASHINGTON : 2008 


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COMMITTEE ON APPROPRIATIONS 

DAVID R. OBEY, Wisconsin, Chairman 

JOHN P. MURTHA, Pennsylvania 

NORMAN D. DICKS, Washington 

ALAN B. MOLLOHAN, West Virginia 

MARCY KAPTUR, Ohio 

PETER J. VISCLOSKY, Indiana 

NITA M. LOWEY, New York 

JOSE ́ E. SERRANO, New York 

ROSA L. DELAURO, Connecticut 

JAMES P. MORAN, Virginia 

JOHN W. OLVER, Massachusetts 

ED PASTOR, Arizona 

DAVID E. PRICE, North Carolina 

CHET EDWARDS, Texas 

ROBERT E. ‘‘BUD’’ CRAMER, JR., Alabama 

PATRICK J. KENNEDY, Rhode Island 

MAURICE D. HINCHEY, New York 

LUCILLE ROYBAL-ALLARD, California 

SAM FARR, California 

JESSE L. JACKSON, JR., Illinois 

CAROLYN C. KILPATRICK, Michigan 

ALLEN BOYD, Florida 

CHAKA FATTAH, Pennsylvania 

STEVEN R. ROTHMAN, New Jersey 

SANFORD D. BISHOP, JR., Georgia 

MARION BERRY, Arkansas 

BARBARA LEE, California 

TOM UDALL, New Mexico 

ADAM SCHIFF, California 

MICHAEL HONDA, California 

BETTY MCCOLLUM, Minnesota 

STEVE ISRAEL, New York 

TIM RYAN, Ohio 

C.A. ‘‘DUTCH’’ RUPPERSBERGER, Maryland 

BEN CHANDLER, Kentucky 

DEBBIE WASSERMAN SCHULTZ, Florida 

CIRO RODRIGUEZ, Texas 

JERRY LEWIS, California 

C. W. BILL YOUNG, Florida 

RALPH REGULA, Ohio 

HAROLD ROGERS, Kentucky 

FRANK R. WOLF, Virginia 

JAMES T. WALSH, New York 

DAVID L. HOBSON, Ohio 

JOE KNOLLENBERG, Michigan 

JACK KINGSTON, Georgia 

RODNEY P. FRELINGHUYSEN, New Jersey 

TODD TIAHRT, Kansas 

ZACH WAMP, Tennessee 

TOM LATHAM, Iowa 

ROBERT B. ADERHOLT, Alabama 

JO ANN EMERSON, Missouri 

KAY GRANGER, Texas 

JOHN E. PETERSON, Pennsylvania 

VIRGIL H. GOODE, JR., Virginia 

RAY LAHOOD, Illinois 

DAVE WELDON, Florida 

MICHAEL K. SIMPSON, Idaho 

JOHN ABNEY CULBERSON, Texas 

MARK STEVEN KIRK, Illinois 

ANDER CRENSHAW, Florida 

DENNIS R. REHBERG, Montana 

JOHN R. CARTER, Texas 

RODNEY ALEXANDER, Louisiana 

KEN CALVERT, California 

JO BONNER, Alabama 

ROB NABORS, Clerk and Staff Director 

(II)


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(1) 

FINANCIAL SERVICES AND GENERAL 

GOVERNMENT APPROPRIATIONS FOR 2009 

WEDNESDAY, MARCH 12, 2008. 

FEDERAL JUDICIARY 

WITNESSES 

HON. JULIA SMITH GIBBONS, UNITED STATES CIRCUIT JUDGE, 

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT 

JAMES C. DUFF, DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED 

STATES COURTS 

CHAIRMAN SERRANO’S OPENING STATEMENT

Mr. SERRANO. Good morning to everyone. The subcommittee will 

come to order. 

We will hear testimony today on the subject of the fiscal year 

2009 budget request for the Federal Judiciary. It is interesting, and 

I just got this terrible feeling, I get about three binders ahead of 

time. I said, what happens if I pick up the binder for tomorrow’s 

hearing and start reading. Tomorrow is the Supreme Court. 

We all know the important role that an independent Federal Judiciary plays in our constitutional system. Judiciary, like other government entities, needs sufficient resources to properly function 

and perform its constitutional duties. This subcommittee, as a provider of those resources, plays an important role in helping to 

maintain our government’s overall system of checks and balances. For fiscal year 2009, the Judiciary has requested $6.3 billion in discretionary funding, an increase of nearly $475 million over fiscal 

year 2008. I look forward to a discussion today on this request, as 

well as the impact of action this committee took during fiscal year 

2008 at the request of the Judiciary with regards to court security 

and pay for public defenders. 

Joining us today to testify in support of the budget request is 

Judge Julia Gibbons of the U.S. Court of Appeals for the Sixth Circuit. Since 2004, Judge Gibbons has served as Chair of the Budget 

Committee of the Judicial Conference. Judge Gibbons testified before this subcommittee last year, and we are pleased to have you 

here once again. 

Also appearing before the subcommittee today is James Duff, the 

Director of the Administrative Office of the U.S. Courts. Mr. Duff 

was appointed to this position in 2006 by Chief Justice John Roberts. In the late 1990s, he served for 4 years as Administrative Assistant and Chief of Staff to Chief Justice William Rehnquist. 

We welcome you both today. We very much look forward to hearing from you. 


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Also, I would like to tell you that as of this morning, President 

McCain has been challenged—I mean Senator McCain, has been 

challenged out West as to whether he is eligible to be President. 

I keep asking every lawyer, every judge that comes before me, 

please clarify whether I can be President, because he was born in 

the Panama Canal Zone and I was born in Puerto Rico. So I hope 

if he gets a favorable ruling, which he should, it includes me too. 

There is more than one way to make me happy. 

Okay. We thank you. 

Speaking of a person who has no doubts that he can be President, and should have been, and should be, Mr. Regula. 

Mr. REGULA. Mr. Chairman, I hope you don’t run, because I 

might have to do a cross-over. 

Mr. SERRANO. Thank you so much. 

MR. REGULA’S OPENING STATEMENT

Mr. REGULA. I am happy to welcome you, and look forward to 

your testimony. Your local colleagues have softened me up as much 

as they can as to what your mission is today. 

Mr. SERRANO. Thank you. You realize tomorrow’s headlines, unfortunately, will not be anything that you say; it will be that I said 

President McCain. 

We welcome you. Please understand that all of your testimony 

will be fully inserted in the record. So we ask that you stay to a 

5-minute presentation. 

Judge Gibbons. 

JUDGE GIBBONS’ TESTIMONY

Judge GIBBONS. Thank you. 

Chairman Serrano, Representative Regula, other members of the 

subcommittee, I testify before you today as Chair of the Judicial 

Conference Committee on the Budget. As mentioned, appearing 

with me today is Jim Duff, the Director of the Administrative Office of the U.S. Courts. 

Mr. Chairman, let me begin today by thanking you and your colleagues for making the judiciary a funding priority in the fiscal 

year 2008 appropriations cycle. The courts are in good financial 

shape for 2008. The funding you provided will allow us to finance 

continuing operations in the courts, as well as address workload 

needs. 

We are particularly appreciative of the $25 million you provided 

in emergency funding to respond to workload associated with immigration enforcement initiatives being implemented by the Department of Homeland Security and the Department of Justice. We are 

also grateful for two provisions that were included in the omnibus 

bill, an increase in the non-capital hourly rate paid to private panel 

attorneys who represent eligible defendants under the Criminal 

Justice Act, and a pilot project in our court security program. I will 

return to the pilot project again in a moment. 

Turning to our fiscal year 2009 budget request, the judiciary is 

requesting $6.7 billion for fiscal year 2009, an increase of $475 million over the 2008 enacted level. $407 million, or 86 percent of the 

increase, is for standard pay and non-pay inflationary adjustments, 


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and for adjustments to base reflecting increases in our space, information technology, defender services, and court security programs. 

We are not requesting any new staff in our clerks and probation 

offices. 

The remaining $68 million of our requested increase is primarily 

for program improvements in our information technology program 

and for an enhancement in our defender services program to increase the hourly rate paid to private panel attorneys representing 

indigent defendants in Federal criminal cases. We are appreciative 

of the rate increase you provided this year, but believe an additional increase is warranted. 

The judiciary’s budget request reflects our continuing efforts to 

contain costs. We are now more than 3 years into an intensive effort to reduce costs throughout the judiciary, and our cost-containment program is producing results. Today, we have achieved the 

most significant savings in our space and facilities program 

through an ongoing rent validation project in which court staff analyze GSA rent billings and identify errors for GSA to correct and 

give us rent credits. GSA has been very cooperative with us in this 

endeavor. 

In the information technology area, we are consolidating the deployment of computer servers throughout the country, which generates savings from reduced maintenance and equipment replacement costs. We are also containing personnel costs. At its September 2007 meeting, the Judicial Conference approved recommendations from a major court compensation study that will 

slow the growth in personnel costs throughout the judiciary. Containing costs is a top priority for us. 

I want to talk briefly about the pilot project approved in the 2008 

omnibus bill. Last year in my testimony I discussed with you the 

judiciary’s concerns about the expense and quality of security provided to the courts by the Federal Protective Service. The subcommittee responded to these concerns by approving a pilot project 

authorizing the United States Marshals Service to assume perimeter security duties from FPS at a limited number of court facilities 

on a temporary basis. Seven courthouses have been selected for the 

pilot. One of these is the Moynihan Federal Courthouse in Manhattan. The pilot project will begin later this year and will be in effect 

for 18 months. We will evaluate the project and provide you with 

the results. 

An issue that has received significant attention from Congress 

and the Administration in recent years is illegal immigration. Significant resources have been provided to the Department of Homeland Security for immigration enforcement, and the President’s fiscal year 2009 budget request continues these investments. Despite 

zero tolerance immigration enforcement initiatives like Operation 

Streamline, we understand that in recent years resource constraints in the justice enforcement system on the border have limited the number of immigration cases being prosecuted in the Federal courts. 

It now appears that additional resources are making their way 

to the border. The Department of Justice received emergency funding this fiscal year to hire additional Assistant U.S. Attorneys and 

Deputy U.S. Marshals on the border, and more border resources 


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are included in the President’s 2009 budget request. We expect to 

see the courts’ workload in that region increase from this infusion 

of resources. 

Our fiscal year 2009 budget request does not ask for new funding 

for new clerks or probation office staff on the border or elsewhere. 

Congress provided us with $45 million over the last 2 years to address immigration-related workload, and so the courts are well-positioned in the short-term to respond to the increased workload. 

But I do want to emphasize that we are in need of additional 

judgeships on the southwest border, and I would also make a special plea for the subcommittee’s support of the $110 million requested for the General Services Administration in the President’s 

budget to fund fully the new Federal courthouse in San Diego. This 

is our top space priority. 

In conclusion, I would ask that my written statement be placed 

in the record, along with the statements of the AO, the Federal Judicial Center, the Sentencing Commission, the Court of Appeals for 

the Federal Circuit, and the Court of International Trade. 

I am of course available to answer your questions. 

[The statement of Judge Gibbons follows:] 


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Mr. SERRANO. Those statements will be included in the record. 

Mr. SERRANO. Mr. Duff. 

DIRECTOR DUFF’S TESTIMONY

Mr. DUFF. Good morning, Chairman Serrano and Congressman 

Regula. Thank you for inviting us to be here this morning. 

I am pleased to present the budget request for the Administrative Office of the U.S. Courts. I will make some brief remarks and 

also ask that my written testimony be included in the hearing 

record. 

I join Judge Gibbons in thanking you sincerely for what you have 

done for the courts over the past year. We very much appreciate 

it. We know what it means in such a tight funding environment to 

be almost singled out for funding in such a beneficial way. 

We deeply appreciate you recognizing the impact that enhanced 

border enforcement will have on the judiciary by providing emergency appropriations to address the additional workload. This 

funding will provide some staffing increases for courts whose workload is heavily impacted by immigration and other law enforcement 

initiatives. 

This is my second appearance before the subcommittee. I have 

now had the opportunity to work with this subcommittee and its 

staff through one full appropriations cycle. I must say, it has been 

a joy to work with your staff. They are very responsive, and we 

have established a very good working relationship with them. We 

appreciated very much being able to work so closely with you, as 

our requirements changed and your allocation was reduced during 

conference on the 2008 omnibus bill. 

The AO, I will mention very briefly as background, was created 

by Congress in 1939 to assist Federal courts in fulfilling the mission to provide equal justice under the law. It is a unique entity 

in the government. The AO does not operate as a headquarters for 

the courts. The courts’ operations are decentralized. Although the 

AO provides administrative, legal, financial, management, security, 

information technology, and other support services to all the Federal courts, the court system is in essence decentralized throughout 

the country. The AO also provides support and staff counsel to the 

Judicial Conference of the United States and its 25 Committees, 

and it helps implement Judicial Conference policies, as well as applicable Federal statutes and regulations. 

The AO has evolved over the years to meet the changing needs 

of the judicial branch. Service to the courts has been, and remains, 

our primary mission. 

Last year, I reported to you that I was assembling a small advisory group of judges and court executives to assist me and our Deputy Director, Jill Sayenga, in a review of the organization and the 

mission of the AO. The ad hoc advisory group confirmed that the 

AO is an organization of dedicated service-oriented and capable 

professionals, but it also identified some areas where the AO’s performance or ways of conducting business could be improved, as any 

organization needs to do. 

We took a long, hard look at our operations to see where we 

could improve. Teams of AO managers have been assembled to 

plan and implement those recommendations. My goal is to ensure 


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that the AO is the best and most efficient service organization in 

the government. I think we are on a path to accomplish that, 

thanks to the review that we have undertaken through the advisory group. 

In supporting the courts, the AO frequently finds itself responding to new developments, such as the Booker and Fanfan Supreme 

Court decisions, or implementing the new bankruptcy legislation. 

To do so, we work with court leaders to develop plans and processes for the judiciary to respond to new challenges. 

Two developments on which we are currently responding are the 

impact of enhanced immigration enforcement on the courts, and 

implementing the pilot project you authorized last year, under 

which the U.S. Marshals Service will assume responsibility from 

the Federal Protective Service for perimeter security at several designated courthouses. 

I want to mention briefly that last year I talked about our efforts 

to improve our working relationship with GSA. I think this is a 

very important development for the courts and for the Federal Government and for our funding in the long run. Last year, I reported 

we made substantial progress. Today, I am very happy to report 

that we have successfully concluded the effort to improve this relationship. 

I shouldn’t say concluded, but a manifestation of success of the 

efforts occurred on February 19, just last month. I signed a memorandum of agreement with the GSA, which was cosigned by the 

GSA Public Buildings Service Commissioner, that changes the way 

rent will be calculated for all federally-owned courthouses to be delivered in the future. It also applies to 32 existing courthouse facilities. 

This is a very significant development because, as you may recall, there were tensions between us and GSA over its rent calculations for the courts. Both the judiciary and GSA will benefit from 

knowing with certainty how much rent the judiciary will pay in the 

future and how much rent GSA will receive. Judiciary and GSA 

staff time and resources for contractor support to conduct and validate market appraisals will no longer be used. There will be a return on investment arrangement, which provides stability and predictability. 

I would also like to respectfully request that you consider providing assistance in solving two major courthouse construction 

problems in San Diego and Los Angeles, where market conditions 

and delays have increased the costs of these projects beyond the 

funding levels already provided by Congress. In addition, other 

projects on the judiciary’s 5-year courthouse project plan, which 

has been provided for the record as an attachment to my written 

testimony, are not included in the President’s 2009 budget request, 

yet they have been on the 5-year plan for a number of years. 

Shifting to the last topic, the fiscal year 2009 appropriations request for the Administrative Office of the U.S. Courts is $82 million. That is an increase of $5.9 million, or 7.8 percent over last 

year. Although the increase we are seeking may appear significant, 

overall it represents a no-growth current services budget. The requested increase is exclusively to cover base adjustments to maintain current services. 


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I think it is significant to note that we are requesting no program increases. Over half of the increase is to fund the proposed 

fiscal year 2009 pay adjustments and to annualize the fiscal year 

2008 pay adjustment. The balance is for inflationary adjustments. 

Chairman Serrano and Representative Regula and members of 

the subcommittee, I recognize that fiscal year 2009 will be another 

difficult year for you and for your colleagues as you struggle to 

meet the funding needs of the agencies and programs under your 

purview. I look forward to working with you and your staff once 

again, and would be pleased to answer any questions you have this 

morning. 

[The statement of Mr. Duff follows:] 


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Mr. SERRANO. Thank you so much. I notice that all representatives of the Federal judiciary call me Serran ̃ o, rather than Serrano. 

That is okay. But I just hope it is not an alias that you guys think 

I am working under. 

Mr. REGULA. Don’t feel bad; they call me Regu ́la. 

RETROACTIVITY OF CRACK COCAINE SENTENCING AMENDMENT

Mr. SERRANO. In the Bronx, we would just say a regular guy. 

We have an issue here. We have a motion to adjourn on the floor 

now, then we are being asked, both sides, to stay on the floor. That 

can only mean we are getting angry at each other again. We were 

angry last night until very late. Every even number year we get 

angry. And so we may have to leave. 

A lot of these decisions that are made that seem like policy decisions do have a budget impact. One of the big issues being discussed now is the whole issue of the crack and powder cocaine sentences, which we understand up to 20,000 people could be leaving 

prison as a result of retroactive application of recent changes to the 

federal sentencing guidelines. 

So very briefly, if you could tell us, just give your views on this 

whole issue, and secondly, what impact would it have on the budget? Is there funding already being thought of to handle the caseload, the workload? 

Judge GIBBONS. We are not asking for any new resources to handle that workload, and that might seem surprising when you hear 

that, 20,000 or so defendants are subject to resentencing. But if you 

look a little more carefully at what is likely to be involved, I think 

you will understand why we are not asking for additional resources. 

These individuals will be resentenced pursuant to a request that 

they make, a court makes, or the Bureau of Prisons makes pursuant to a statutory provision that allows the court to consider a 

number of factors, including public safety and conduct subsequent 

to conviction. But a full resentencing is not necessarily required, although there is plenty of room for the exercise of court discretion 

and room for courts to deny the motions if appropriate and if considerations counsel in favor of doing that. 

It is expected that at least initially the first wave of individuals 

will be people whose sentences are very, very close to termination, 

and there may be little disagreement about whether a person 

serves is released a month or two early, or even slightly more. 

I understand that as of Monday of this week, a mere week after 

the retroactivity provision became applicable, over 800 of these individuals had already been processed, suggesting that at least in 

the first instance, there will not be that much burden associated 

with them. Down the road, certainly there will be litigation, but it 

will be spread over time, and we are hopeful we can handle this 

within existing resources. 

Mr. SERRANO. Now it would seem to the public or to a person 

who is not working in the court system that if you speak of 20,000, 

it just has to be a burden, the workload. Yet, you tell us you feel 

it can be handled within existing funding sources and somehow fit 

into the existing workload. I hope you are right, because otherwise 

we are going to have a major issue. 


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Judge GIBBONS. I hope I am. 

[CLERK’S NOTE.—Subsequent to the hearing, the Judiciary provided the following additional information:] 

While the U.S. Sentencing Commission estimates that approximately 19,000 inmates sentenced under the previous crack cocaine sentencing guidelines may be eligible for a reduced sentence as a result of retroactive application of the revised sentencing guidelines, it is important to note that these 19,000 would potentially be released over the course of 30 years. The Commission estimates that 3,804 of the 

19,000 offenders would be eligible for a reduced sentence and early release within 

the first year of the effective date for retroactivity (March 3, 2008). In year two another 2,118 would be eligible, 1,967 more in year three, 1,773 more in year four and 

1,353 more in year five. The remaining offenders would be eligible in year six and 

after. These filings will be handled by various district court components, including 

district judges, clerks offices, probation offices, and federal defender offices. the Judiciary believes retroactivity will have the greatest impact on its probation offices, 

which will supervise any crack cocaine offenders that may be granted early release, 

including overseeing any drug testing and treatment needs that may be imposed by 

a court as a condition of release. 

It is generally agreed that a large number of motions for a reduction in sentence 

will not involve court hearings and will be decided on written filings, so the courts’ 

workload associated with processing those cases should not be unduly burdensome. 

The cases that require hearings will require more court resources. At present, no 

extraordinary measures have been necessary to address the increased workload due 

to retroactivity, although additional resources will be available if needed for smaller 

districts that may be disproportionately impacted by the number of federal offenders 

seeking a reduction in sentence based on retroactivity. Given all of these factors, 

and the staggered nature of offenders becoming eligible for a reduced sentence, the 

Judiciary believes it can absorb the additional workload within existing resource 

levels by shifting funds as necessary to meet workload demands, including ensuring 

that released offenders receive close supervision by a probation officer. 

Mr. SERRANO. We are going to have to break and go take this 

vote, then I understand there is a privileged resolution that may 

be presented by the minority leader. Maybe we can come back, because we will have the debate and probably a 15-minute vote. 

Mr. REGULA. I don’t have that many questions. We can submit 

ours for the record. 

Mr. SERRANO. Why don’t we just break and come back. Sorry 

about that. We will be back. 

[Recess.] 

Mr. SERRANO. We will resume. We apologize. We are going to try, 

with all due respect to all your preparation, to wrap up the hearing, only because we are getting happy with each other on the 

House floor. The love that you see is incredible. God bless democracy. It is, I am serious, it is part of it, because there is going to 

be a privileged resolution on the floor, there will be some debate, 

then there will be a vote which we both have to be at. 

Let me just ask you another question, and then I will turn it over 

to Mr. Regula. 

COST CONTAINMENT

Director Duff, now that you have held your position for nearly 2 

years, you are probably in a better position than when you testified 

last year to assess the cost containment and other management 

strategies that you put in place within the judiciary. Would you 

comment on what you believe to be your biggest successes and your 

biggest challenges thus far? 


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54 

Mr. DUFF. Thank you for the question, Mr. Chairman. I think 

one of our greatest successes is the recent agreement with GSA. I 

think that is going to result in a great savings to the judiciary. 

Mr. SERRANO. I think any agreement with GSA may be huge. 

Mr. DUFF. It is a benefit to GSA, too. I think it provides some 

predictability with the costs that we will incur with regard to rent 

going forward. 

We have also taken some other steps that I am proud of. One of 

the things that Chief Justice Roberts and I have been most interested in doing is, rather than responding to Congress and Congress’ 

pressures, is getting out ahead of this a little bit. 

The pressures we have received from Congress have resulted in 

very good developments for the judiciary. Sometimes there is initial 

resentment. But in many instances, it has been good and healthy 

for the judiciary. 

Here is an example, however, where I think we got ahead of the 

Congress in the last year. We took a look at the projected costs of 

career law clerks in judges’ chambers and saw a trend that we 

didn’t like. More judges were hiring more and more career law 

clerks rather than term law clerks, which are there for 1 year. Career law clerks are more expensive over time, they have higher salaries, and so forth. The Judicial Conference took action this past 

year and put some limitations in place on the number of career law 

clerks each judge could hire. We limited those to one per chamber. 

Over time, that may not sound like much, but it will save a lot of 

money. 

We are taking a very close look at all of our expenditures, seeing 

where we can cut costs, where we can save, and we have been 

working with your staff very closely on these sorts of measures, too. 

I am encouraged as to what the judiciary is doing not only in response to congressional inquiries and pressures, but also on its own 

initiative. 

PANEL ATTORNEY RATES

Mr. SERRANO. Thanks. 

In last year’s bill we included an increase in the hourly rates 

paid to panel attorneys for non-capital work to $100 per hour. Why 

is the judiciary requesting $17.5 million, for an 18 percent increase 

in the rate to $118 per hour for fiscal year 2009? Is the current 

$100 rate inadequate to attract qualified panel attorneys? 

Judge GIBBONS. Certainly we are very grateful for the increase 

to $100 an hour. But we believe that is still inadequate in some 

circumstances to attract qualified attorneys. We have done surveys, 

and they support this point. I would also note that even with the 

rate increase, after deduction of overhead, the private panel attorney is making on average $36 an hour before taxes. By contrast, 

a privately retained attorney in a criminal case could expect, after 

overhead, to net about $148 an hour. 

The government pays lawyers $200 an hour to represent Federal 

employees in civil and criminal matters. So we believe that the additional two-stage increase we are requesting to $118 in 2009, then 

hoping to go to $140 in 2010, which would bring us to the point 

contemplated when the adjustment procedures in the Criminal Justice Act were initially enacted. We believe that that would really 


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enhance our ability to make sure that defendants receive the quality representation that the Constitution requires. 

Mr. SERRANO. Before I turn it over to Mr. Regula, let me just clarify the overhead part. You said after overhead, it was $36 an 

hour. But if you were assigning $118, what overhead are we talking about? 

Judge GIBBONS. The $36 relates to the amount remaining after overhead at the $100 an hour rate. In other words, almost twothirds of the lawyer’s expenses don’t end up in the lawyer’s pocket, 

it goes towards overhead expenses, such as rent, utilities, those 

kinds of things. 

Mr. SERRANO. Mr. Regula. 

JUDGES LEAVING THE FEDERAL BENCH

Mr. REGULA. Thank you. I have to congratulate you in the sense 

that anybody in public life is fair game. But I do not get criticism 

from my constituents on the judiciary. They are critical of course 

of the executive branch and the legislative branch. But I have 

never had any of the judicial branch. I think people respect it, and 

generally perceive that the judicial branch is operating on a very 

unbiased, fair basis. We have had some great judges from my area, 

as you well know. 

A couple of questions. What percent of Federal judges leave the 

bench to go back to private practice? Because that would reflect a 

little bit the conditions and the amount of money and so on. 

Mr. DUFF. It is a growing percentage. I don’t have the exact percentage, but what we have seen in the last few years is an increase 

in the number of judges leaving the bench, a slight increase. There 

is a growing increase in the number of judges leaving the bench entirely, retiring. 

But the significant change that we have seen over the course of 

the last 5, 10 years, and it is going up, up, up, is that the number 

of judges who do leave the bench, retire, do not take senior status, 

and are going into private practice or corporations or other lines of 

work, such as arbitration services and so forth. 

That is of great concern to us, because that number is increasing. 

Life tenure has its purposes, and is ensured in the Constitution for 

very good reason. We like to see our judges stay as long as they 

are capable of judging on the bench, and we are very grateful to 

our senior judges who could retire but stay on the bench and provide services to the judiciary. 

That has concerned us and we are very grateful to both the 

House and the Senate for considering actively this year the need 

to increase the salaries of judges to ensure that they stay on the 

bench and provide life service or life tenure to the country. 

[CLERK’S NOTE.—Subsequent to the hearing, the Judiciary provided the following additional information:] 

Resignations from the federal bench once were rare. Now such resignations are 

increasingly frequent. Twenty-seven Article III judges have resigned or retired from 

the federal bench since January 1, 2005. It appears that 22 of these judges sought 

other employment. Of these 22: 

6 of these judges ‘‘retired’’ to join JAMS, a private firm comprised of former 

federal and state judges that provides dispute resolution services, where they 

have the potential to earn the equivalent of the district judge salary in a matter 

of months. 


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7 judges entered the private practice of law (presumably at much higher salaries). 

2 judges resigned to become corporate in-house counsels. 

3 judges resigned to accept other, higher paying governmental positions (two 

in state government and one in the federal government). 

2 judges resigned to accept appointments in higher education. 

1 judge accepted an executive branch appointment at the same salary. 

1 judge retired to accept an appointment to a quasi-governmental position. 

The table below shows the number of departures that has grown in tandem with 

the financial pressure of being an Article III judge: 

Time period Number of 

departures 

1958 to 1969 ........................................................................................................................................................... 3 

1970 to 1979 ........................................................................................................................................................... 22 

1980 to 1989 ........................................................................................................................................................... 41 

1990 to 1999 ........................................................................................................................................................... 55 

2000 to March 18, 2008 .......................................................................................................................................... 1 55 

1 This figure includes two judges who have announced their intention to resign from the federal bench later in 2008 without any right to 

an annuity. 

Of the 110 judges who have left the federal bench since 1990, 82 retired from the 

judicial office and 28 departed before reaching retirement age (without any right to 

an annuity). To the Judiciary’s knowledge, 65 of the aforementioned 110 judges (60 

percent) stepped down from the bench to enter the private practice of law (including 

private dispute resolution firms). Twenty-three judges sought other employment 

(e.g., government and quasi-government agencies, academia, and the non-profit sector). This means that 80 percent of judges who left the federal bench did so for other 

employment and, in most cases, for significantly higher compensation. 

While the absolute numbers of judges leaving the federal bench may not seem 

large, it is significant that a substantial proportion of these separations appear to 

be related to compensation. That the numbers seem to be on the rise, and that a 

number of the departing judges were eligible for (or were in) senior status (when 

judges traditionally continue to give their energies to judicial service long after they 

retire from active service) or were younger, active judges without entitlement to an 

immediate or deferred annuity should give rise to particular concern. For judges to 

use the position as a mere stepping-stone to reentry into the private sector and law 

firm practice is inconsistent with the traditional lifetime calling of federal judicial 

service. 

Mr. REGULA. Most of them serve by assignment even after retiring. Is that not often a common practice? 

Mr. DUFF. Yes, sir. It is called senior status. Well, there are two 

levels of retirement, if you will. It is confusing to refer to judges 

who elect to take senior status as retired. There is some statutory 

language that confuses the two. But judges who reach the age of 

65 and have 15 years of service, it is called the Rule of 80, can stay 

on the bench in senior status. 

Senior judges provide a lot of service to the judiciary. Rather 

than just leaving and going and sitting on the front porch in a 

rocking chair, they are providing services to the judiciary. They retain chambers, space and staff, provided they are doing a certain 

amount of work and so forth. That is different from retiring entirely, giving up their commission, and going into retirement, or, as 

we are seeing more and more, going into the private sector. 

Mr. REGULA. Many of them do take senior status as sort of a 

transition. 

Mr. DUFF. Many do, and we are grateful that they do rather than 

retiring entirely. 


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WORKLOAD OF JUDGES

Mr. REGULA. What is your observation on the workload of 

judges? Has it increased as we have become a more litigious society? 

Mr. DUFF. I think the statistics over time have gone up. The 

types of cases have varied. The immigration and drug cases are 

adding certainly to the workload. There are some regional differences in workload, as we have pointed out to your committee 

and others. 

The slight decline in the last year or two in workload could give 

the wrong impression over a longer period of time as to what has 

happened to the workload within the judiciary. Even though there 

might be a slight decline in certain kinds of cases in the past year, 

if you look at the trend over the past 5, 10 years, the workload has 

increased. 

[CLERK’S NOTE.—Subsequent to the hearing, the Judiciary provided the following additional information:] 

Although the Judiciary’s workload has begun to level of, workload in the federal 

courts has increased considerably in nearly all workload categories when viewed 

over a 10-year perspective. As summarized in the table below, from 1997 to 2007, 

criminal filings increased 37 percent, the number of criminal defendants grew 27 

percent, offenders under supervision of a federal probation officer increased 27 percent, the number of cases activated in the pretrial services program increased 37 

percent, and appellate filings grew 13 percent. Civil filings follow a more up-anddown filing pattern from year to year and grew 3 percent overall in the last decade. 

Bankruptcy filings are down nearly 566,000 filings from the 1997 level due in large 

part to the sharp decline in filings after the Bankruptcy Abuse Prevention and Consumer Protection Act took effect in October 2005. 

Workload factor 1997 Actual 1 2007 Actual 1 Change 2007 vs. 1997 

Percent change 

2007 vs. 1997 

Criminal Filings ......................................................... 49,376 67,503 18,127 37 

Criminal Defendants Filed ......................................... 69,052 88,006 18,954 27 

Probation: Persons Under Supervision ....................... 91,423 115,930 24,507 27 

Pretrial Services: Cases Activated ............................. 69,959 95,955 25,996 37 

Appellate Filings ........................................................ 52,271 58,809 6,538 13 

Civil Filings ................................................................ 265,151 272,067 6,916 3 

Bankruptcy Filings ..................................................... 1,316,999 751,056 (565,943) ¥43 

1 Data reflects the 12-month period ending June of each year. 

FEDERAL PROTECTIVE SERVICE

Mr. REGULA. I was interested in the Federal Protective Service. 

I assume that providing security for the courts and the judges is 

quite a challenge. 

Mr. DUFF. Yes, sir. 

Judge GIBBONS. Yes. Of course the U.S. Marshals Service statutorily has the authority, the responsibility for providing for our security. But we have gotten into this relationship with the Federal 

Protective Service through its provision of perimeter security in the 

buildings we occupy. 

Mr. REGULA. I was interested; the Washington Post said Secretary Chertoff says he expects the FPS to raise their fees to help 

cover rising costs. Raise their fees to whom? Who pays their fees? 


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Judge GIBBONS. We do, as do all Federal agencies that are recipients of their services. 

Mr. REGULA. So your budget would have the necessary funds to 

respond to any fee increase by FPS, is that correct? 

Judge GIBBONS. Well, we just became aware of the letter to 

which you are referring, and we have some preliminary figures. 

The increase was not known to us prior to the receipt of that information yesterday. It is not in our budget because we were unaware 

of it. 

Mr. REGULA. So Secretary Chertoff kind of threw you a curve in 

left field? 

Judge GIBBONS. We estimate the additional cost would be $2 million for all of fiscal year 2008. The fiscal year 2009 cost would be 

$3.2 million, which is not in our 2009 budget request. I think it is 

$2 million for 2008 because it is my understanding that Secretary 

Chertoff announced an increase for the fiscal year in progress and 

we are assuming the rate increase is retroactive to October 1, 2007, 

regardless of when the new personnel are hired. 

Mr. REGULA. Well, you have done a great job on your testimony. 

Unfortunately, we have another vote and we have got time problems. So I have a number of questions I will submit for the record. 

Thank you, Mr. Chairman. 

Mr. SERRANO. We certainly do have a vote pending and probably 

more to follow. So we will try to wrap it up. But we will recognize 

Mr. Schiff, who I know is not going to speak about a courthouse. 

CONSTRUCTION OF NEW COURTHOUSE IN LOS ANGELES

Mr. SCHIFF. Well, thank you, Mr. Chairman, for the recognition. 

But I have to differ with you on the subject matter. 

I am only going to raise this because the chairman did and because Mr. Duff raised it in his testimony. I appreciate your discussing that in your testimony. As I know you are aware, the Central District of California has a population of 18 million. It is made 

up of seven counties. It is the largest, most populous judicial district in the Nation, with twice as large a population as the next 

largest district. 

In 2004, the Central District Court in Los Angeles was processing more than 16,000 cases a year. Currently, as you know, the 

district court is housed in two separate buildings, about a 5-minute 

walk from each other. One was built in 1938, and while it has eight 

beautiful historic courtrooms, it doesn’t meet modern security requirements for judges, prisoners or the public. 

Discussions began as far back as 1984 to determine how to accommodate the additional courtrooms and judgeships to the court. 

Ten years later, the GSA determined that neither building could 

accommodate the long-term needs of the court, and the decision 

that a stand-alone building to house the entire district court was 

made. 

Here we are 24 years since the process began. The need has been 

growing. Construction has still not begun. You can imagine how 

concerned the judges are and the litigants and the public that 

serves their jury duty there about the situation. I spent 6 years as 

a Federal prosecutor in and out of the courts there, so I am intimately familiar with the constraint of the current situation. 


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While I understand that the funding for courthouse construction 

is not funded by the Administrative Office of the Courts, or the judiciary, but rather through GSA, I would ask you to explain a little 

further detail beyond your written testimony about the need for a 

new building in Los Angeles and why it is such a high priority of 

the Administrative Office. 

Mr. DUFF. Well, it is a very high priority, and you are exactly 

right in the way you have described what has evolved. It is a problem because the cost estimates have gone up before construction 

was able to be started. It is a problem that GSA is working on with 

us to try to resolve, to figure out, what to do to get more funding. 

It is a question of funding right now, the additional funding that 

is going to be needed to meet increased construction costs, which 

are a factor of the market in Southern California. Finding available 

construction companies to do the work at the initial funding level 

proved to be impossible. So additional funds have been sought. 

It is something we are working very actively on with GSA to try 

to resolve and with the executive branch generally because the 

problem hasn’t gone away, and it won’t go away. This isn’t something that is going to solve itself. So we are working with GSA. 

As I mentioned earlier, I think our relations with GSA have improved over the last year or two. The Los Angeles courthouse 

project is an area where we continue to have a conflict with GSA. 

But I have to say we have at least engaged in what is a more productive dialogue in trying to resolve a very difficult problem. You 

are right in saying these are funds that don’t come out of our budget, but rather out of GSA’s budget. 

Mr. SCHIFF. The concern I have is that while the cost of the 

project has gone up because we keep delaying construction, we actually have continued to reduce the scope of the project to bring 

costs down. I don’t want to get to the point where what we build 

is already outdated and too small for what we need. 

While I value GSA’s input on this, I don’t want to have a long 

delay while GSA does another endless analysis of a problem we all 

recognize exists and then have to start over from scratch. The reality is a significant amount of money has been authorized and appropriated for this, but we need more. The same kind of cost increases we have seen because of the delays are going to continue, 

and may even get worse. This is consistently ranking at the top of 

the Administrative Office’s priorities, the L.A. Courthouse. 

I assume that that criteria is still the same, and we are still at 

the top of the list. It just has to get done. 

Mr. DUFF. You are correct. Our priority list changes from year 

to year based on new courthouse construction. The Los Angeles 

courthouse project remains a top priority for us. It doesn’t appear 

on our current 5-year courthouse project plan because only construction projects that have not previously received funding for 

that purpose appear on the list. When additional funding is required for a project that was on an earlier priority list, it certainly 

remains a top priority, but you may see the identification of specific 

courthouses change from year to year based on which projects need 

new construction funding. 

Mr. SCHIFF. We look forward to beginning new construction and 

appearing on the top of every list. 


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Mr. DUFF. We do, too. Yes, sir. 

Mr. SCHIFF. We are going to really push to get that started now, 

and see if there is a way that can be funded through the supplemental. 

Mr. DUFF. We appreciate any and all help we can get on it because it is a severe problem. 

Mr. SCHIFF. All of us in the Los Angeles region recognize this 

just has to get done. We don’t want to wait for something bad to 

happen. So I appreciate your priority on this, and we will work 

with you to push the GSA along and see if we can find the money 

to finally get this started. 

Mr. DUFF. Thank you very much, Congressman Schiff, and thank 

you for all your efforts on behalf of the judiciary. You have been 

an enormous supporter of ours this past year. We appreciate it. 

Mr. SCHIFF. Mr. Chairman, thank you for working me in before 

the votes, notwithstanding the topic. 

Mr. SERRANO. I think the Jose ́ Serrano Courthouse in L.A. will 

be fine. 

Mr. SCHIFF. Mr. Chairman, if that is what it will take. It has a 

nice ring to it. 

Mr. SERRANO. I apologize for the fact that we didn’t spend as 

much time with you as we would have wanted. I appreciate the 

work you do. We will continue to work together on this budget. 

I just leave you with one totally unrelated thought. About 2 

years ago, the members of the New York delegation were during 

a vote on the House floor saying why would David Paterson leave 

the Senate in New York, a safe seat, to go and become Lieutenant 

Governor, where nobody will notice him. At 11:30 he will be sworn 

in as Governor of New York in what started as a tragedy and is 

a tragedy. But it is a strange life that we are all living in and a 

strange profession we are in, all of us. 

I thank you, Mr. Regula, and I thank you. We will continue to 

work to make sure that you get the resources necessary to do your 

work. 

Judge GIBBONS. Chairman Serrano, and I wanted to make sure 

I said that, we are appreciative of the opportunity to be heard. 

Mr. SERRANO. Just get me the ability to run for President. 

Thank you so much. Meeting adjourned. 


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(101) 

THURSDAY, MARCH 13, 2008. 

SUPREME COURT 

WITNESSES 

HON. ANTHONY M. KENNEDY, ASSOCIATE JUSTICE, UNITED STATES 

SUPREME COURT 

HON. CLARENCE THOMAS, ASSOCIATE JUSTICE, UNITED STATES SUPREME COURT 

CHAIRMAN SERRANO’S OPENING STATEMENT

Mr. SERRANO. This hearing will come to order. Good morning to 

all. The subcommittee will hear testimony today on the subject of 

the fiscal year 2009 request of the United States Supreme Court. 

We are all well aware of the important role that the Supreme 

Court plays in our constitutional system and the subcommittee 

takes its role as the appropriators of the Supreme Court’s budgetary resources very seriously. Joining us today to testify on the 

importance of the Supreme Court’s budget request are Justice Anthony Kennedy and Justice Clarence Thomas. And we welcome 

you. Both justices have testified here several times before this committee. And I know that, as ranking member of another committee, 

this may be our 10th year together, or something like that, in support of the Court’s budget request. We welcome you back and we 

appreciate you taking the time to come and testify. We very much 

look forward to hearing your testimony about the needs of the Supreme Court, as well as any thoughts you may have on the federal 

judiciary as a whole. 

For fiscal year 2009, the Supreme Court has submitted a request 

for just over $88 million. Nearly $10 million more than fiscal year 

2008. A substantial part of the increase for the Supreme Court is 

for the ongoing building modernization project. I look forward to 

hearing how the project is progressing. 

I probably will get staff—they are a little upset at me, but I say 

what I say every year. I still feel somewhat uncomfortable about 

having the Supreme Court Justices come before us. We hold you 

in high regard, and we hold the Court in high regard. It is the way 

the system is set up. Maybe it can change in the future. I understand it is the only time you appear before Congress during the 

year, certainly to discuss a budget. But we do welcome you. 

And for those of you who were trying to figure out what we were 

discussing for a few minutes, we did not make any major decisions 

on anything. Although I must say, on a personal level, that for 

about 10 years, I have been trying to get out of you an unofficial 

comment on whether or not someone born in Puerto Rico can serve 

as President. And from what I understand from a California case, 

you may have to decide on Senator McCain. So if you do, I will try 

to get myself included in the same thing. 


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It is nice to have you here. And speaking about a man who has 

no problems with being President in terms of where was he was 

born, our ranking member and my buddy, Mr. Regula. 

MR. REGULA’S OPENING STATEMENT

Mr. REGULA. Thank you, Mr. Chairman. 

Yes, the State of Ohio competes with Virginia for being the mother of Presidents. We have some dispute as to which has eight Presidents, and I come from the home of William McKinley, the 25th 

President of the United States. 

We are happy to welcome you. I was thinking as we were sitting 

here that the judiciary and the judicial system to some extent is 

the conscience of the Nation because you have to look at the laws 

and determine what the impact will be, what they mean. And having the courts available to the people is a very important part of 

our Nation and the rights of each of us. So we salute what you do. 

We appreciate having you here this morning. 

As the chairman said, it is one of the few places where the judiciary intersects with the legislative branch in the separation of powers. But the Founding Fathers had found in their wisdom that the 

power of the purse should remain in the legislative branch. So that 

brings us together this morning, and we look forward to your testimony. Thank you for being here. 

Mr. SERRANO. Thank you, Mr. Regula. 

I would like to remind you that your full testimony will be inserted into the record. So we would appreciate, to allow for questions during these difficult voting times, if you could keep your remarks down to 5 minutes. However, I am not about to gavel a 

member of the Supreme Court, especially before the ruling on my 

Presidency. So, with that in mind, please welcome and start your 

testimony, please. 

JUSTICE KENNEDY’S TESTIMONY

Justice KENNEDY. Thank you, Mr. Chairman, Mr. Vice Chairman. Justice Thomas joins me in thanking you for the opportunity 

to appear before the committee. 

As is our custom and our pleasure, we have with us the officers 

of the Supreme Court sitting, beginning with our Clerk, General 

Suter. And then there is Connie Phillip, of budget and personnel; 

our administrative assistant to the Chief Justice, Jeff Minear; Pam 

Talkin, the Marshal of the Court; and Kathy Arberg, the Public Information Officer. 

Mr. Chairman, oh, incidentally, I can give you a ruling right 

now. You are eligible to come to the Supreme Court. 

Mr. SERRANO. I am eligible to serve on the Supreme Court? Is 

that what you just said? 

Justice KENNEDY. No problem with that. So if your Presidential 

ambitions subside, you can always come—— 

Mr. SERRANO. But President is kind of cool. 

Justice KENNEDY. Mr. Chairman, you are correct that this is one 

of the few times that the Court, the judiciary, interacts with the 

legislature. But that is because checks and balances presume that 


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there will not be complete separation, that there will be some interaction. 

The fact that we do come before you is really important for us 

because it gives us a discipline, structure, a rule. We know that we 

must justify our budget, and that makes us as an institution careful about adopting a new program, careful about the expenditures 

of public funds. And so this serves that very important purpose. I 

might say that it has perhaps been your experience, and I certainly 

heard about it, that in some instances, there is a certain amount 

of tension or lack of a good working relationship between the committee staff and the agency that it oversees. That has not been our 

experience with your staff. In fact, quite the opposite. The working 

relationship between your staff and between our staff is simply excellent. If we find what we think might be a problem that your 

committee would be interested in, we immediately notify the staff. 

They are always very perceptive and responsive. 

Mr. SERRANO. Justice Kennedy, the TV people would like you to 

move the microphone a little closer. And you know, that is the real 

power in this society. 

Justice KENNEDY. Is that working better for you? All right. 

Thank you very much. 

Mr. SERRANO. Thank you. 

Justice KENNEDY. As you indicated, Mr. Chairman, the budget 

request for the Court part of the budget, leaving aside the building 

and grounds, is $69,776,000, just under $70 million. We are very 

proud of the fact that there is a zero increase in the request—zero 

request for new programs. One hundred percent of the increase, 

and it is an increase of under 5 percent, is for adjustments to base. 

We worked hard to do that. 

I might say that when we talk about new programs, in a sense, 

that is important for budgetary and appropriations requests language, but we have within the Court resources to make new programs—within—or we have new endeavors, new projects within 

the budgetary authority that you have given us already. Let me 

just explain one of these, and that is the development of the docket 

that we have on the internet. 

There are about 175 appellate courts in the United States, and 

I get this information from our Clerk, General Suter, who is so conversant on this and who really was in charge of Docket 21, which 

is our Web site docket. These appellate courts are different; they 

number one hundred seventy-five. This is probably too small for us 

to go to an outside contractor and say develop a program, and in 

all events each of the appellate courts is different. And if we had 

an outside contractor, we would have to pay that contractor to 

learn about how the Court works. 

So we did it ourselves over a period of 4 years. It is the best Web 

site of any court in the world. We had an increase of over 2 million 

visits in the last 2 years, that is an increase of a million a year. 

For January we had over 1,700,000 visits, and had over 9 million 

hits. We checked just in the last 24 hours or so and found out that 

about 10 percent of those visits are from foreign countries. Japan, 

Pakistan, Western Europe, and India. It is a marvelous education 

tool. 


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It also means that it is of substantial assistance to the bench and 

to the bar. What happens is formal, written, printed, hard copy 

briefs are filed with the court. But the parties also must file an 

electronic copy. We immediately send that copy to the American 

Bar Association, and at no expense to the government, the American Bar Association puts online the text of all the briefs and all 

the amicus briefs. And the hits I have given you, incidentally, do 

not include the hits on the ABA site to read the briefs. 

I think we should do a better job, at least I should do a better 

job, when I visit with high school students or university students 

to tell them to visit the Web. It is the Supreme Court of the United 

States, just abbreviated slightly, supremecourtus.gov. 

Supremecourtus.gov, and it is a marvelous educational tool. It has 

the history of the Court. It has pictures of the Court and, of course, 

detailed information about the cases. 

In an age when so many young people do not write well, the amicus briefs are a treasure trove for writing instruction. You could 

get a young person, even in high school, interested in a case and 

show them a very good example or a very bad example of writing. 

This is just the tip of the iceberg. And this was developed, as I 

have indicated, all inhouse, all with our Court staff without any 

outside contractors. And it was done with your budgetary authority, and we are extremely proud of it. 

This is what a court ought to do, as Mr. Regula indicated. We 

have a duty to let the public know what we are doing and why we 

are doing it. So we are very, pleased that you have given us the 

authority to do that. 

You mentioned the building project. I sometimes think it is like 

pyramids; it just seems never to end. We are, even by the contractor’s own estimate, 16 months behind schedule. Our inhouse people 

think that it is going to be longer than that. It means that the 

court is not really presentable for visitors. We think it turns away 

some visitors because we have temporary walkways, people do not 

know that the cafeteria is open, et cetera. Plus, it is a building of 

which the People of the United States and, of course, the justice 

system and the Members of the Congress are very proud. 

So I just can not tell you that I am pleased with the progress. 

It is true that they are working around the Court, and the contractor has not disrupted our operations in any substantial degree. 

There have been occasions where this has happened. But we will 

continue to work with the Architect of the Capitol. And I probably 

should pay more attention to this, and I hope I can give you a more 

optimistic report the next time. Thank you very much, Mr. Chairman. 

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Mr. SERRANO. Thank you. 

Mr. Thomas. 

JUSTICE THOMAS’ TESTIMONY

Justice THOMAS. Thank you, Mr. Chairman, Mr. Regula. 

I agree with Justice Kennedy’s assessment of where we are and 

the sentiments toward the committee. I have been involved in 

budget processes now for over 25 years at the Federal level. And 

I can attest to the fact that the Court’s budgets have been more 

parsimonious than any budget I have ever participated in. In fact, 

if anything, the Court has been overly parsimonious in its budget 

requests. 

With respect to the automation projects that are now yielding immense results, I don’t think any of us could have dreamed or 

dreamt that it would have been this successful. I don’t think that 

any of it could have been accomplished without the constant support of this committee and sometimes because of the prodding of 

this committee. So, again, I think that the working relationship between the Court and the staffs, both at the Court and on this committee, is beginning to bear fruit. 

So, once again, I appreciate being here, and I know over the past 

decade you have expressed your concerns about us appearing. But 

I might say that, despite your expression of those concerns, it has 

been a deep honor for me to be here. So we thank you once again. 

We thank you on behalf of the Court as well as the country that 

we all serve. 

Mr. SERRANO. All right. Thank you. And I appreciate your comments. 

BUILDING MODERIZATION

You say that we are 16 months behind in the building modernization project and the inside folks think it is longer than in the 

plan. But is that 16 months still to end this fall? 

Justice KENNEDY. They are 16 months behind the projected completion date. 

Mr. SERRANO. Which was? 

Justice KENNEDY. Which was 2008, 2008. 

Mr. SERRANO. So it won’t end this fall? 

Justice KENNEDY. So we are 16 months beyond the projected 

completion date and the contracted completion date. 

And part of the problem is—I wanted to go to double shifts in 

the summer, and they told me that that would not help—the work 

does have to be done at night because we are in the building. I 

originally floated the idea of our moving out of the building to get 

it done faster. We were told it would not save any money, and it 

would not be any faster. So we stayed in the building. And the contractor has been very good about working around—we do it in 

quadrants. There are four different segments, and we are now on 

the second segment. 

Mr. SERRANO. What reasons do they give for the delay? Because 

you are in the building during the day? They knew that ahead of 

time, right? 


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Justice KENNEDY. It is standard construction stuff. This person 

didn’t measure the windows right. But if you look at our Court, it 

is a magnificent court and the windows look rectangular. They are 

not. They are hexagonal. That is not right. 

Justice THOMAS. Trapezoids. 

Justice KENNEDY. Trapezoidal. They are slightly narrower at the 

top than the bottom to give an aesthetic appearance. Well, they 

measured the bottom, and they measured the height. But they did 

not measure the tops, so all the windows had to go back. And there 

is a big argument as to who will pay for it. Please, do I have to 

talk about this? 

Mr. SERRANO. You see, I do make my point. And we spare you 

talking about paper clips and legal pads, you know. And just one 

last question on that, without making it difficult for you, but have 

they told you what remains to be done other than just—— 

Justice KENNEDY. Well, we know. The work is very substantial. 

On the interior, they have to go down to the original brick. They 

have to basically take away all the interior walls to put in new 

windows. It is very substantial. The inside of the Court at each 

point is completely stripped down to the outside layer of bricks. 

And so it is quite substantial. All of the plumbing, all of the wiring, 

all of the heating, all of the ducts have to be changed. The infrastructure equipment, the air conditioning equipment and so forth, 

has been fully installed. 

Mr. SERRANO. Now that has all been paid for already? 

Justice KENNEDY. That has all been budgeted, and we are within, the good news is, we are within budget. 

Mr. SERRANO. That is the accomplishment. 

As far as the building and grounds, what types of maintenance 

issues do you anticipate, if any, will be problematic in future years? 

Have you looked at that? 

Justice KENNEDY. Well, I was amazed that we have $122 million 

to do the building, and then we came in for a supplemental appropriation for the roof. Hello? I mean, I thought we were refurbishing 

the building. So we find new things. But my understanding is that 

the Architect of the Capitol now has identified all of the work that 

will be done. We are in three phases. And the outside walkways, 

the roof and the lighting, I think, will be the end of it. 

JUDICIAL SALARIES AND ETHICS

Mr. SERRANO. Okay. Let me move onto the whole issue of, the 

very serious issue, of judges’ pay and ethics. I know that Chief Justice Roberts has been very vocal in support of raising the pay for 

federal judges. The House and Senate have both passed bills out 

of committee which provide pay increases, which I am sure you 

both support. I would like to discuss part of the Senate bill, which 

I believe the Judicial Conference does not support, which is the addition of provisions which seek to limit outside sources of income 

for judges. Do you also oppose the idea of limiting outside sources 

of pay for federal judges, and if so, why? 

Justice KENNEDY. I have not looked at the text of the bill. Let 

me tell you what my understanding of the present law is: We cannot take outside income from any services at all other than teaching, and as to that, we are limited. It is 15 percent of a certain salVerDate Aug 31 2005 03:36 Jun 24, 2008 Jkt 042830 PO 00000 Frm 00114 Fmt 6601 Sfmt 6602 E:\HR\OC\A830P2.XXX A830P2

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ary grade. And that amounts to about $25,000 a year for teaching, 

and this has to be at an academic institution and teaching in a formal course, in the conventional sense. I have done this myself since 

1975 at least in Europe, and that is permitted with this limit. 

Other than that, we obviously can not take consulting fees or 

fees for services. And that is, to me, as it ought to be. There is a 

long tradition of judges teaching. We think it is helpful for the 

judge. I have taught since 1965. And the day I do not learn something, that is the day I will quit. The teacher learns as much as 

the students. That is why it is encouraged. And it is of tremendous, 

tremendous benefit. One of my former students is on the supreme 

court of Hungary. I have students in the Czech justice ministry. I 

have students on the courts around the country. 

The American law school system is not unique, but very rare. We 

have, with American law schools, a formal structure for the transmission of our whole legal tradition. My son went to law school. He 

learned everything that I had to learn, Marbury vs. Madison, 

McCulloch vs. Maryland, plus everything that was decided since. 

And this gives us a language. It is the language of the law. It is 

a great national resource. I can pick up a telephone and talk to a 

young person who is a couple of generations removed and a continent away. And I never met him; I have never been introduced 

to her, but I know them because we talk this common language. 

And this is what we preserve in the legal academy and in our law 

schools. And I assure you this language of the law which allows 

transactions to be negotiated without any intervention of the government, which allows the economy to move, is the envy of the 

world, and we participate in that by teaching. 

Mr. SERRANO. Are you allowed to make appearances other than 

for purposes of teaching? 

Justice KENNEDY. Not for pay. 

Mr. SERRANO. Not for pay. Such as, I mean, every so often I will 

see you on—— 

Justice KENNEDY. Well, I talk to law school alumni groups. I talk 

to bar associations. I talk to associations of judges. 

Mr. SERRANO. Okay. 

Justice Thomas, any thoughts on this issue of judicial pay and 

ethics? 

Justice THOMAS. Well, I promise you I won’t comment much on 

it. I just think it doesn’t make much sense for people with that responsibility to be paid at the level of first-year associates. But with 

that said, I think there is great effort both in the House and the 

Senate to resolve that. 

With respect to the outside income issues, I agree with Justice 

Kennedy that teaching—and again, I did not come from a teaching 

background. But teaching has just been a wonderful way to think 

about the law in a different way with young minds that are inquisitive. And I think it is a win-win because the students are used to 

full-time professors. But then they have an opportunity to see people whose approach to the law is not academic; it is one of deciding 

the cases. They are the ones who put it together and write the 

opinions, and that exchange is enormously beneficial. 


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That is the only context, other than writing books or inheriting 

money, that you can have outside income. It is very limited now 

as it is, and then it is a small percentage of your salary. 

It is my personal view. I don’t speak on behalf of the Federal 

judges. I don’t think it is helpful to propose a lot of additional limitations. There are already severe constraints, and I have found the 

Federal judges with whom I have worked to be just tremendous 

people. They are hard working. They enjoy what they do. I think 

they do it in the right way, disagree in the right way, criticize in 

the right way. And I just simply don’t think that to give the impression that they are somehow doing something inappropriate is 

really a good message to send. 

I do think that it is a time, particularly at the income levels and 

with the workloads that the district judges have, it is time to encourage people to come into the judging profession, not to discourage them with more or further constraints or oversight. 

Mr. SERRANO. Thank you. 

Justice THOMAS. Again, I say that is a personal view. 

Justice KENNEDY. I confined my answers simply to the outside 

income part. 

As to the salary issue, we have testified about this in the other 

committees. Just let me say, I think we are at a crisis point. It is 

my view that the Congress of the United States has a constitutional duty—at least in the small ‘‘c’’ sense—not an enforceable 

duty where we can sue, but a constitutional duty as a matter of 

loyalty to our heritage and to our constitutional traditions to insist 

on excellence in the Federal judiciary. The reason the judiciary of 

the United States was successful and influential in the most important civil rights decisions in the history of the Court was because 

it had gained respect, experience, credibility by trying civil cases 

and deciding civil cases. 

And, Mr. Chairman, we are losing our best judges. We can not 

attract them to begin with, and we can not retain them. You do not 

need to go to a management search firm to find qualified arbitrators. You look in the roster of Federal judges, and you tell the Federal judge in Albuquerque or Wichita or Duluth or New York: Now 

you are on the bench. How would you like to triple your income? 

You can do what you like the best. You can do arbitration. You can 

set your own schedule. You will have wonderful attorneys, fascinating cases, and you will earn triple the money. 

And if we do not get relief on the salary, there will be an exodus 

of judges, and they are our best judges. And the Congress simply 

has the urgent duty to correct this in order to save the excellence 

of the judiciary. The judiciary to which I have devoted my life is 

in danger of losing its best people. And it is critical. 

Mr. SERRANO. I would agree. I would agree. 

Mr. Regula. 

TEACHING THE ROLE OF THE JUDICIARY

Mr. REGULA. Thank you, Mr. Chairman. 

I am interested, you mentioned about going into the schools. Do 

you think the education system gives students an appreciation of 

the role of the judiciary in protecting the rights of citizens? When 

I look around, what happens in many countries where the people 


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don’t have that access to justice, do you think we do in our education system enough to apprise young people of the important role 

of the judiciary? 

Justice KENNEDY. No, I do not think we do enough to explain to 

our young people the meaning of our history, our tradition, of our 

heritage of freedom. You do not take a DNA test to see if you believe in freedom. It is taught, and teaching is a conscious act. And 

we are in danger of having a generation that is simply ignorant of 

the principles that this country stands for and its history. You cannot preserve what you do not understand. You cannot defend what 

you do not know. 

Mr. REGULA. We allocate funding here to the Treasury Department to do education programs for young people to deal with their 

finances. Should we be doing something like that for the judiciary? 

Justice KENNEDY. Well, I think there is a systemic problem in 

the teaching of civics. Civics is generally taught by the person that 

teaches drivers ed, with a similar result, in my view. And I think 

we have to give quite careful attention to the way and the substance in which history is taught. The best teaching is sometimes 

lateral. It is by indirection. The way to reach a student is to make 

him think you are teaching about something else. And suddenly he 

or she learns it. And that is the right way in my view to teach 

civics. Washington surrendering his sword at Annapolis is the classic example of separation of powers. It is brilliant. The students do 

not understand that. 

POLITICIZATION OF THE JUDICIARY

Mr. REGULA. Well, it is no doubt a challenge. Former Justice 

O’Connor had a recent article on politicization—it was in Parade 

Magazine—a politicization of the judiciary because in many jurisdictions, judges have to run for election. Therefore, they have to 

raise money. They have to respond to policy questions in the process. Do you have that same concern about the way in which our— 

it is not Federal—but State judges and State judiciary systems are 

created and maintained? 

Justice KENNEDY. The Court, I do not think, has a monolithic or 

a unified view on this. I am just not sure where my colleagues 

stand. It is very difficult to keep up with Justice O’Connor in retirement. I have not read her latest article. But, look it, there is 

nothing more important than the independence of the judiciary. 

Mr. REGULA. I agree. 

Justice KENNEDY. And 90 percent of the caseload is in the State 

courts, and almost all State Court judges, and justices, are subject 

to some form of election. This dates from Andrew Jackson. And 

when you have a society where judges have the power that they do, 

I do not think you are going to change it. I think State judges are 

going to be elected. In California, the State judicial system is bigger than the Federal system. If you suddenly said they all had to 

be appointed for a long term of years or for life, you would have 

to have a whole new selection process that just would have to be 

made from scratch. And if you have Federal courts that are not 

elected, you at least have a judicial body that can decide constitutional issues without election. 


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Now, as you know far better than I, elections cost money. And 

the idea that judges have to raise money is a matter of great, great 

concern. In California, where the ballot is very large, people tend 

to vote ‘‘no’’ on things they do not understand. And if you have a 

good judge that is under attack, he or she knows that going in, because people do not pay any attention to it, he or she is going to 

get about a 35 or 40 percent vote going in. And so I am not quite 

sure what the answer is. 

When I was growing up in California in the 1950s and the 1960s, 

if there was a good judge that was under attack, the bar association would defend that judge. Now we have plaintiffs’ bar, defense 

bar. We do not have a built-in defense mechanism for really good 

judges. 

I think we have to recognize that it is not going to change. So 

we have to take the existing system and try to make it work. And 

we have to use it as a way to educate the public on the qualifications for a judge, what it means to have a judicial temperament, 

what it means to have judicial character. And we can use these 

elections for a very, very important purpose, and that is to explain 

the meaning of the judicial function. And it seems to me that private organizations, the bar association, and civic groups should get 

together and have codes that are not State imposed but to rank 

candidates and to monitor them, their campaigns. And I think this 

could be a learning opportunity. I think it is visionary to think we 

are going to eliminate elected judges. And I have never talked to 

Justice Thomas about this subject. Maybe he completely disagrees 

with me. 

Mr. REGULA. Justice Thomas, do you want to comment? 

Justice THOMAS. Just briefly. Obviously, it is a problem. But I 

think that when people have an opportunity to express themselves 

about what we do, much of it has to do with their particular interests and outcomes in cases or in particular issues. And the judging 

is actually more of a process. Sometimes the outcome is for a person. It might be against a person. One judge may be more apt to 

have a more constrained view of statutory construction, and the 

other may have a more expansive approach. But it is usually more 

about the process, not an outcome in a particular case. You don’t 

reach an outcome and work backwards. 

I think, unfortunately, when people look at judging and much of 

the commentary is based on outcomes, interests and outcomes, and 

people work backwards. So it is not surprising that the process of 

electing judges tends to be somewhat politicized. It would be as 

though we got to, for those of us who are big sports fans, got to 

elect the referees for, say, the Oklahoma-Nebraska game. Of 

course, I would elect a referee who would be partial to Nebraska, 

and those who would like a different outcome would elect one who 

has made good calls for Oklahoma. Well, neither of those approaches is consistent with good refereeing, because you just simply want the referee to be fair, and I think that is what judging 

is about. You want a judge to be fair and conscientious and ethical; 

not to give me the outcome I want. 

I think that is hard when you try to translate that into sort of 

a political campaign of some sort. And it may be expecting too 

much. I don’t know. 


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Mr. REGULA. Well, it certainly buttresses the wisdom of the 

Founding Fathers and the lifetime appointments. 

Justice THOMAS. Well, I think so, too. 

SUPREME COURT WORKLOAD

Mr. REGULA. One other question. I notice your caseload is a little 

bit lower this year. Is there any particular thing you attribute that 

to? 

Mr. SERRANO. They need to take up my Presidential case. 

Mr. REGULA. They might have time for that one. We keep reading that society has become more litigious, and yet your caseload 

would seem to reflect there is certainly not an increase and maybe 

some decrease. Would you care to comment on that? 

Justice KENNEDY. We ask ourselves this question and cannot find 

an answer. We have control over our docket. But we do not take 

cases just in order to look busy. There are some possibilities that 

should be considered. One, as I have just indicated, is some of the 

major civil cases are disappearing from the docket. They are going 

to arbitration. And it is disappointing to me that Federal courts are 

not seen as one of the purest, most efficient, most neutral, most 

fair fora for the adjudication of disputes that we can possibly devise, but it is not perceived that way. House counsel will tell me 

that they will advise their client, or outside counsel, that they will 

advise their client: You are right on the law, and you should win. 

And there will be a 20 percent chance that there will be an error 

that we can’t correct, and you add that to the chances of a runaway 

verdict, do not go to Court. 

And that is not a happy state of affairs. But because so many of 

those cases are going to arbitration, the civil docket has shrunk 

somewhat. The nature of the cases in the system are changing. The 

tort cases, other than employment related, have almost disappeared from the Federal docket. Civil rights cases have taken 

their place. The criminal load remains very high. 

But the good news is that, in part because the courts are responsive to the decisions of the Supreme Court, we have been very efficient. The law is fairly well settled. 

Another source of work for the Court are new Federal statutes, 

a Bankruptcy Reform Act, the Glass-Steagall Banking Act. You 

have in this room a portrait of Representative Steagall, who sponsored the Glass-Steagall Banking Act. A new statute requires Federal decisions to clarify and to implement. And there have been no 

major new Federal enactments, I guess, since the Bankruptcy Reform Act, that have given the courts a lot of business. Also that 

takes around 2 to 3 years to get to us. 

Mr. SERRANO. Thank you. 

You know, as you were speaking, I sort of did a 34-year review 

of my career as an elected official; 16 in the State assembly and 

18 here. I remember when I started out, the issue was that the 

panels that appointed judges didn’t seem to appoint any minority 

judges. So we felt at the time that the best shot we had was to register people to vote and then elect judges. And we did that. We 

were successful. 

And then as the years go on, the idea of a judge coming to me 

or a person coming to me and asking for political support to run 


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just doesn’t sit well with me. And then you see them at re-election 

time years later being at an event that they really can only be at 

as a private citizen attending the event and not as a judge, because 

the rules—I mean, it gets so complicated. To use a bad pun, in my 

mind, the jury is still out on selection versus election because there 

is something that was missing when the bosses were appointing, 

and then there was something missing when folks have to come to 

me and ask for political support for something that is as important 

as the judiciary. 

Mr. Schiff. 

JUDICIAL PAY

Mr. SCHIFF. Thank you, Mr. Chairman. 

Thank you, Justices, for being here. We appreciate your time and 

your testimony. I wanted to ask one question of each of you if I 

could. 

On the issue of judicial salary, as you know, I have been for a 

long time an advocate of delinking our salaries from the judges and 

also improving judicial salaries so we can continue to track the best 

and the brightest in the legal profession, on the bench, and keep 

them there. And I am glad we have legislation that is moving. I 

wanted to ask Justice Kennedy, though, about some of the provisions. We made some compromises in the bill. While we delinked 

the salary, increased salaries by 31 percent, we also revised some 

of the retirement provisions. And in particular, I think they may 

be hardest on some of the magistrate judges who are in a different 

position than other members of the bench who don’t have life tenure, can’t go on the senior status and may have a bigger impact 

by changing the rule of 80 than other judges. So I wanted to ask 

if you had gotten feedback from magistrate judges or other judges 

about whether what we have done has a disproportionate impact 

on them as well as what feedback you might have or you received 

from your colleagues on lower courts about some of the proposed 

retirement changes. 

One of the things that we wanted to do as part of the compromise was incentivize judges to stay on the bench longer. And we 

had kind of a skewed system where we pay judges very little on 

the front end but gave them pretty good retirement on the back 

end which had the reverse incentive, in some respects, of encouraging judges to leave the bench early. But if you could, Justice 

Kennedy, share your thoughts on that. 

And Justice Thomas, I wonder if you could give us your thoughts, 

a few years ago, one of my colleagues, Judy Biggert, and I formed 

a bipartisan caucus on the judiciary to try to improve relations between the courts and the Congress. Justice Rehnquist at that time 

in his year-end report stated that he thought that the relationship 

between the two branches had reached a historic low. And what I 

wanted to get your sense of is, have things gotten a little better 

over the last couple of years? They seem to me to be a little better 

than at the time Justice Rehnquist wrote his report. But I don’t 

know whether I am just fooling myself. So I would be interested 

to know the perception on the bench of how things are in terms of 

the relationship between the two branches of government. 


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Justice KENNEDY. Congressman, I have not studied the provisions of the bill affecting magistrates and retired judges. And in 

any event, our Judicial Conference of U.S. would have better insights about that than I, and I have not had much feedback from 

them. 

And as you recognize, and I think the way you phrased the statement was quite correct, we have senior judges and retired judges. 

The senior judges keep us afloat. A senior judge who is eligible for 

seniority, roughly the rule of 80, is required to take a one-third 

workload, and he or she has just one clerk and one secretary. They 

handle 18 percent of the Nation’s judicial business. Most senior 

judges take almost a full load. 

I succeeded Charles Merrill, United States Circuit Judge from 

Nevada, on the Ninth Circuit. He told me when he left, the senior 

workload was greater than the regular workload when he got to 

the Court. And that has happened again since I left the Court of 

Appeals. A senior workload is now equivalent to what an ordinary 

workload was when I came. So our senior justices, senior judges 

are heroes and are very necessary. And that is why we can not lose 

them. That is why we can not have them wait until the day of retirement eligibility and then go out. 

Retired judges, this is a different context, and there is some concern about a retired judge receiving his or her full vested salary 

and making a lot of money, and there are some adjustments that 

are being considered there, and I think that is something that is 

fair for the Congress to look at. 

Mr. SCHIFF. Thank you. 

And, Justice, I had a chance, both as an Assistant U.S. Attorney 

and as well as a law clerk for the Federal District Court in L.A. 

For Judge Matt Byrne, to see what kind of work the judges and 

senior staff were doing. So I am well aware of how much of a load 

they are carrying. 

Justice Thomas. 

Justice THOMAS. Congressman Schiff, I agree with what Justice 

Kennedy said with respect to the senior judges. I did not clerk or 

spend much time with the Federal judiciary until I went on the 

bench in 1990. And it is a wonderful group. Many of the senior 

judges carry tremendous workloads. Some travel around the country to help with the workload imbalances in other parts of the 

country, whether it is in California or central Florida, where they 

have just an overwhelming and difficult workload. 

With respect to your question about relationships between the judiciary and the other branches, particularly the legislative branch, 

I didn’t have a strong sense before that the relationships were that 

strained. Chief Justice Rehnquist would have had a better sense 

than I did. One of the things that I do know is that our current 

Chief Justice is very optimistic about rebuilding and actually enhancing that relationship or those relationships. He has made it a 

priority. I think in his year-end report he reflected on that. And I 

think, quite frankly, he will be successful. He has the energy, intelligence, the demeanor, the attitude and the disposition to do that. 

And I think his efforts will benefit not only our Court but the entire country. And that includes the relationships with the other 


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branches. So I am very optimistic, to the extent that there was a 

problem, that it will cease to be one in the future. 

Mr. SCHIFF. Thank you both. 

And, Mr. Chairman, if I could just comment very quickly, on the 

salary issue and on the retirement issue and, in particular, on the 

magistrate judge issue, if I could ask through you of the administrative office, you know, I would like to know feedback about 

whether they think perhaps we didn’t fully consider the impact on 

the magistrate judges but also, you know, what feedback you are 

getting or they are getting from judges around the country in terms 

of the potential offsets if they leave the bench and earn a great income on their pension. And I would appreciate getting that feedback. And I thank you both for your testimony. 

Thank you, Mr. Chairman. 

MOMENT OF SILENCE FOR THE TROOPS

Mr. SERRANO. Thank you. 

Let me just inform the subcommittee and the public that a few 

minutes ago on the House floor, we held a moment of silence as a 

part of a memorial that was held this morning for our troops. Notwithstanding how anyone feels about the war in Iraq, we honor 

their service. And we will now take a very short moment to bring 

our thoughts in honor, as a memorial to them and let the shortness 

of that moment not be any indication of the immense respect and 

admiration and love we feel for those who serve and those who we 

have lost. 

[Moment of silence.] 

Mr. SERRANO. Mr. Bonner. 

ELECTRONIC COURTROOMS

Mr. BONNER. Thank you, Mr. Chairman. And thank you for that 

observation. 

If I could have just a personal moment of privilege here. My dad 

died when I was 13. He was very proud to be an attorney. He was 

proud to graduate from Georgetown Law School after World War 

II. And one of his most proud moments is when he passed the bar 

to practice before the United States Supreme Court, although he 

never had that opportunity. So I think if he were alive today, he 

would think that this is pretty special, that his son is allowed to 

question, not appear before the Supreme Court, but question two 

of its distinguished members. So thank you for appearing before us 

and giving us this opportunity. 

Just a quick question and then an invitation that you probably 

have never received before a panel such as this. But I will save 

that for later. The Court’s fiscal year 2009 request includes 

$255,000, if I understand it, to equip one of its three courtrooms 

as an electronic courtroom. Could you describe in some detail how 

this electronic courtroom would be used and in as much as C– 

SPAN is covering today’s hearing and I know this is a question 

that has come before different members of the Supreme Court before, what challenges would C–SPAN type coverage of the Court 

bring? 

Justice KENNEDY. The electronic courtroom is something that I 

am not familiar with insofar as our Court is concerned. And I don’t 


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know if the Congressman is referring to a trial court in our general 

budget. Is it our Court we are turning into an electronic courtroom? 

Mr. BONNER. It may well be, not in the Supreme Court building. 

My understanding is it was in one of the Federal courtrooms. And 

I was just really—the broader question is, what unique challenges 

would C–SPAN coverage bring to the Supreme Court given that 

most Americans can watch with great comfort the legislative proceedings of the day and see the executive branch before the camera? But the Court remains somewhat of a mystery to most Americans. 

Justice KENNEDY. Well, electronic courtrooms. I was involved in 

California in creating what was modestly called the courtroom of 

the future. But there are many things you can do. If jurors have 

pop-up TV screens, then they can all see the exhibit at the same 

time, and this speeds things along. Plus, we are in—and I tried, 

as a lawyer, I tried a couple of cases to see how it would work. At 

one key point, I asked the witness, did you see the victim at 10:00 

that night? It was a key point of the trial. And everybody looked 

at the TV screen, not the witness himself, as if that validated the 

reality of it. I was amazed at that. 

CAMERAS IN THE COURTROOM

Switching over to cameras in the courtroom, I think that almost 

all of my colleagues—I can not ever speak with assurance of 100 

percent—are very concerned that the legislature, that the Congress, would mandate televised coverage of our proceedings. There 

are a number of reasons for that. We teach something by not having televised hearings. We teach that we are judged by what we 

write and by what we decide. That is a very important lesson. Furthermore, I do not know any Congressman or Member of the legislative branch who has seen particular arguments that he or she 

thinks are flawed and that could be improved if we were under the 

scrutiny of national television. The attorneys and perhaps even the 

justices would feel at least the temptation to have that little bon 

mot or that little last word. And I do not want an insidious dynamic introduced into my Court that would affect the relations that 

I have with my colleagues. I do not want to think that one of my 

colleagues asked a question because he or she was on TV. I do not 

want that temptation to exist, and I do not want them to think 

that about me. 

The oral arguments are wonderful. A good oral argument is really like a discussion of a doctoral thesis rather than some big deal 

debate. We think that the dynamic is very sound, and we do not 

want to risk changing it by the introduction of the television. 

I am a teacher. I recognize that if you had an Oxford debate on 

this and you drew the affirmative, you could make a lot of points. 

We could reach the whole public. They could see the Court in action. But I think it would be unhelpful for the collegial relations 

that are so very important during that 1 hour of argument. We 

think we should be entitled to at least a presumption of correctness 

and to some deference in determining how best to preserve the dynamic of the wonderful proceeding that we know as oral argument. 

We think that TV endangers that. 


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Mr. BONNER. Justice Thomas, do you have a view on the televised Court? 

Justice THOMAS. I have not been one of the champions for that. 

I just don’t see how it would improve our processes. I think there 

is already too much activity in oral arguments, and I don’t see 

where this would temper it in any way. One of the cases, and I 

think this is just sort of illustrative of some of the concerns, one 

of the cases that drew the most attention or considerable attention 

in the last few years was a case involving the probate exception to 

our jurisdiction. Now that doesn’t immediately grab your attention; 

does it? Well, it grabbed quite a few people’s attention, including 

the press, because it involved Anna Nicole Smith, precisely the 

wrong reason for being concerned or being interested in what we 

do. The issue itself was of substance, the probate exception; not the 

personalities. And I think the concern is that you begin to have a 

sort of a tabloid effect because of the personalities involved as opposed to the substance of the case. And that doesn’t seem to help 

our processes. 

There are other concerns and other arguments, both for and 

against. But I think the additional concern is, who gets to make 

that decision? We look at our institution, and we have our own personal intimacy with the issues, with the processes, with the dayto-day activities. We understand it. And to the extent that that decision should be made, I think it is felt that the judiciary should 

make the call. But I don’t think it would help our processes, and 

I think it raises some other concerns that I have that are not really 

worth going into now. But I come down on the side of thinking that 

it is not a good idea. 

Justice KENNEDY. The Court has a time line, a chronology, an etiquette, a grammar, a language, a tradition that are different from 

the legislative branch. We are not better. We are not worse. We are 

different. And it seems to me that we should be entitled to the presumption of correctness in determining how best to preserve that 

dynamic and that distinction. 

Mr. BONNER. I appreciate both of your answers, and I think 

there are probably many people in Congress who would agree with 

you, especially, Justice Kennedy, about the point of trying to get 

the last word in. We don’t do that here in the legislative branch. 

At the risk of my chairman and ranking member scolding me later 

and saying this is inappropriate, I can’t pass up this opportunity. 

Some 45 years ago, a lady in my district, Harper Lee, penned a 

novel, ‘‘To Kill a Mockingbird,’’ that I think many law professors 

and judges around the country view as one of the great stories, although fiction, about a man named Atticus Finch each spring in 

Monroeville, Alabama, where Harper Lee was born and still resides. The people in that community put a play on for 2 weeks. So, 

Justice Thomas, I believe you and your wife like to travel by RV. 

We would welcome you and the entire Court to come to Monroeville 

and to see the men and women of that community. This was done 

at the Kennedy Center a decade ago by my predecessor. Justice 

O’Connor and I believe some other members of the Court came. It 

really is a special story to see local townspeople, not trained actors 

and actresses, show their hearts, emotions, by re-enacting that 


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play. So at the risk of being chastised by the chairman and ranking 

member, let me extend an invitation to the Court. 

Thank you, Mr. Chairman. 

Mr. SERRANO. As I hold the gavel in my hand, let me tell you 

that Mr. Bonner’s invitation is one of the finer things that has happened in the committee this year. We are talking here about an 

American classic, and besides, I have other places I am inviting the 

Justices to soon. 

You know, one of the problems with labels in politics—liberal, 

conservative, I am labeled a liberal—is that when you don’t fall in 

line with what some people have labeled you as, they criticize you 

for that. Some of my colleagues for years, both here and in the 

State assembly, have not understood why I do not favor cameras 

in the courtroom. At first I said in the State assembly that in the 

poorest assembly district in the State—I now represent the poorest 

congressional district in the Nation, situated within the richest city 

on the Earth—some kids would see their moment on TV as the 

only way to be famous in that neighborhood. They would see the 

guy being accused of a crime on TV as some sort of a hero, and 

I opposed it then. 

Now that the world has changed and you no longer get your 

news from the newscast but from the talking heads on TV—I know 

that I am probably kidding myself in that enough information already goes out there, more than I know. But the whole idea of 

being able to have tonight’s CNN, CNBC, FOX, you call it—left, 

right, center—be able to take a videotape of a 4-hour session of the 

Supreme Court and begin to attack members of the court for their 

questioning—‘‘he is a liberal, he is a conservative, look where he 

is going’’—I don’t think that would serve us well. Maybe it is a 

train that has already left the station. Maybe it is something that 

even at this moment I know little about, and that there is already 

more being broadcast than I know. The whole idea that the kinds 

of issues that the Supreme Court deals with would be publicly 

scrutinized every night, with some of the language that is used on 

TV regarding the issues you have discussed, worries me and at moments it could scare me. 

And just for the record, I will get 15 calls from my open government friends this afternoon who say I have switched. 

MINORITY HIRING

To prove to them I have not switched, let me ask you my next 

question. An issue I have asked about every year you have come 

before me, and I think it is now about 10 years either as Ranking 

Member or Chairman of this subcommittee, and that is the issue 

of hiring of minority law clerks and other professional staff. What 

sort of progress is the Court making in hiring qualified minority 

clerks and other professional staff? Are there efforts to reach out 

to minority students in law schools to make them more open to 

serving as law clerks in the Federal court system. Do you keep statistics on these issues and, if so, would you be willing to submit 

them for the record? 

Lastly, in the last part of the discussion as I directed it, we were 

told that at times the problem with getting minority law clerks and 

minority staff is that the schools that we went to do not have that 


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large a minority student body. And my suggestion was, well, like 

the old joke, ‘‘Doc, it hurts when I do this,’’ and the doctor says, 

‘‘Well, don’t do that.’’ So you know, go to other schools. 

What are your thoughts, have we made some changes? Because 

you talk about teaching and that is a powerful tool, but to be able 

to be within the judiciary as law clerks and be members of a minority community, that could have an impact on future societies like 

nothing we could ever think of. Your thoughts. 

Justice KENNEDY. I think minority hiring is something that the 

Court keeps in mind. It wants to be very sure that it is open, it 

is receptive to minorities, that it knows the value that they can 

bring to the Court. Insofar as law schools, I think some of the topranking law schools that we often use as a pool for the selection 

of our clerks, although not exclusively, they do a very good job of 

getting minority candidates. A very good job. I have not looked 

lately at the completion rates, but minorities have a lower law 

school matriculation rate than other groups, than nonminorities. 

And so that somewhat diminishes the pool, but we are conscious 

about it. 

Mr. SERRANO. Well, Justice Kennedy, with all due respect, that 

is what an effort is. 

Justice KENNEDY. And that is why we make an effort. 

Mr. SERRANO. Right. The fact of life is that there are less of some 

folks in law school, but that should not stop us from trying to recruit some of them. Although there is less of a black and a Hispanic population in the United States, it may not be soon, but that 

still doesn’t mean someday we should not have a Hispanic member 

of the Supreme Court, notwithstanding the numbers. 

So I disagree with the argument that we are not producing 

enough folks while there are some highly qualified folks; there are 

Jackie Robinsons everywhere, ready to play and to play well and 

to produce, and Hall of Famers in every profession. And I think 

that the judiciary, because I take it so seriously and respect it so 

much, I want my community to share in it as much as anyone else. 

It is not always, as I said before, getting someone from my community elected a judge or someday someone being appointed to the Supreme Court; it is also having folks in the system, even if they 

don’t stay there, that they leave and go back to private practice or 

whatever, but they have been there, they have that understanding 

and were part of that group. 

Justice KENNEDY. Well, of course, a clerkship with us is a good 

ticket to private practice. 

Mr. SERRANO. Yes, I would say. 

Justice KENNEDY. There is no doubt about that. And we are quite 

aware of what this means to minorities. And sometimes the justices, in hiring, are competing with the same pool; and when there 

is an exciting minority candidate, you sometimes have to act very 

quickly to get him or her because the justices take them. 

Mr. SERRANO. Any thoughts, Justice Thomas? 

Justice THOMAS. Well, just one point. When you said Hispanic 

law clerks who happen to be Jackie Robinsons, I think Justice Kennedy is being rather modest. He did have a Hispanic law clerk who 

was a Jackie Robinson. His name was Miguel Estrada, who was extraordinary, and who is extraordinary by any measure. 


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Mr. SERRANO. He should have bragged about that. That is totally 

proper. 

Justice THOMAS. Well, I will brag for him. He is more modest. 

I take a different approach to hiring law clerks. I said that a law 

school, for example, that I don’t hire female law clerks. I continue 

to just hire the best law clerks. But about half turn out to be, or 

30 percent or 40 percent, turn out to be women. I wind up with 

minority law clerks. 

I continue to think that you don’t have to look at one prescribed 

pool, it could be broader. I still think that there are wonderful kids 

in the non-elite schools—not all of them, it may not be very deep— 

but there is a lot of talent out there. But we don’t have an NFL 

combine-type situation to sort out all that talent. 

My clerks next year will come from Rutgers, from Creighton, GW 

and George Mason. And I think it will be as outstanding a class 

of law clerks as I have ever had. Mostly it is safer to go with the 

Ivys and the elite law schools, but there is talent out there. 

I think when we say ‘‘minorities’’ we should be a little bit more 

precise. I think it is basically Hispanic and black. There are tons 

of Asian law clerks. If you look at percentage population, there is 

fluctuation with female law clerks, but I think there is always a 

fairly substantial number and they are a lot easier to find. And 

they are outstanding performers, so you do not have to dig very 

deep. But the point is simply that some burden should be on the 

law schools, too. 

Mr. SERRANO. Right. 

Justice THOMAS. Because we take the products that they 

produce. And if they don’t produce the product, then it is just like 

anything else. The availability simply isn’t there. We don’t recruit 

the law students. We don’t educate the law students. We don’t determine who is on Law Review. We don’t teach them in a way that 

they can become the elite in their class. We don’t do any of that. 

We take the end products—I think much of the burden goes there, 

not to the judges who consume the product of the law schools. 

RELEASING AUDIO TAPES AND OTHER INFORMATION

Mr. SERRANO. Thank you. I just have one more question for the 

Justices. I would like to tell the committee that we will be having 

votes soon. It is not my intent to keep the Justices here much 

longer. 

This follow-up issue of the TV cameras, there are also the issues 

of releasing audio tapes on the same day. Do you see that as an 

alternative to televising? Is that something we could tell folks, well, 

you are going to get this or you could get this instead of the televising? 

Justice KENNEDY. We do that. We release the audio I think within—immediately when the argument concludes, and in important 

cases where not everyone can get into the courtroom. I think that 

is 10 a year; only 3 a year. 

Mr. SERRANO. And by the way, I would like to agree with Mr. 

Bonner that we never grandstand or anything because we are on 

TV. In fact, the fact that I will be in the Speaker’s chair from 2:00 

to 4:00 today, and I am wearing a green shirt and green tie, has 


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nothing to do—there is no relationship to Monday being St. Patrick’s Day, I assure you of that. 

Mr. Regula. 

Mr. REGULA. Well, my question is, is all the information put on 

the Web—the briefs, the arguments, everything? We talk about 

having TV in the courtroom, but isn’t there complete availability of 

information for the public through the Internet? 

Justice KENNEDY. Yes. 

Mr. REGULA. Including the briefs that are filed. 

Justice KENNEDY. And all the amicus briefs. 

Mr. REGULA. So it is all out there for anyone who is interested. 

I think that is an important point as part of our open government, 

and that a person who really is interested has access is the important point I would make. 

COURT SECURITY

The other question we haven’t talked about, security at the 

Court. Are you comfortable with the way that—the security programs established at Court buildings and so on? 

Justice THOMAS. That is an excellent question. Again, when I 

first went on the Court—which seems to be forever now—almost 17 

years ago, we had very little focus on security issues. I can say that 

now; that time is long gone. But I think the Court does an excellent 

job. Our officers are well trained, we are well staffed, there is quite 

a bit of concern about the Justices when they are away from the 

Court, the U.S. Marshals have done a fabulous job as we have traveled around the country. 

So I think at present, the security concerns that I had in the past 

are a part of the past and that they are doing an excellent job. And 

the Court is in a good position to make sure that we are secure and 

that we are safe. 

Mr. REGULA. So you are comfortable with the arrangements that 

are there and way in which it is delivered in security services? 

Justice THOMAS. I am very much so. And should there be any 

concern, we would be back to address those. But I think in the 

past, with this committee’s assistance and staffing and training in 

security issues for us personally, you have been enormously responsive. Even in the outside, much of the maintenance we are talking 

about outside the building, there are security issues there; there 

are barriers around the Court, the building, there are blast-proof 

materials, all sorts of things that you have made possible through 

the budget process here and in our discussions. 

So there may be concerns in the future, but presently I think 

things are as they should be. The Marshal and her staff have done 

a very good job. 

SUPREME COURT VISITORS

Mr. REGULA. One of the unique things, of course, of our society 

is the openness for visitors at the Capitol. The halls are jammed; 

many days people are visiting. I don’t find that to be the case when 

I visit capitols of other countries. Do you get much in the way of 

public visitation at the Court, people who just come in to look 

around and to see or maybe sit in the audience before a hearing? 


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Justice THOMAS. I think there is a steady stream. I think our 

highest year was 1999 when there were over 800,000 people—— 

Mr. REGULA. Really. 

Justice THOMAS [continuing]. Who came to the Court. There are 

all sorts of public events and there are still up around 70,000 who 

come to the Court each year. There is no shortage of visitors. I 

think there is some tempering of that and some cooling of that because the building is under construction. 

Mr. REGULA. I understand. 

Justice THOMAS. As soon as that is over and you have the Visitor 

Center here opened—and right after 9/11, of course, things went 

down, but I think it will all come back. That building is very accessible, you have an enormous amount of traffic. And the thing that 

is wonderful about it for most people, I know for me, that is the 

Supreme Court that I have always known. It is a monument to our 

Federal judicial system. I think a lot of people, even if they do 

nothing more than take pictures in front of it, want to be there. I 

do believe that that traffic will continue. There are lots of visitors. 

I think our staff does a great job, a wonderful job of securing the 

building in spite of the open access of the building. 

Mr. REGULA. I would be curious: If you were a civics teacher in 

high school, could you write to the Court and ask for material on 

how the Court works, how the system works, to be used with your 

students? 

Justice THOMAS. Oh, I even—we have all sorts of brochures and 

material. There is material on the Internet. I know I get regular 

requests for Constitutions and for materials on the members of the 

Court, and I send those brochures out. 

I think, again, going to your point about the accessibility of information, whether you want to know about cases, decisions, history 

of the Court, it is all there. Yes, quite frankly, there is—— 

Mr. REGULA. Is that part of the education process? 

Justice THOMAS. Yes, that is right. 

Mr. REGULA. Mr. Chairman. 

Mr. SERRANO. Thank you. As I suspected, the votes are coming 

so our last set of questions will come from Mr. Schiff. 

SUPREME COURT JURISPRUDENCE

Mr. SCHIFF. Thank you, Mr. Chairman. I have just two questions, one very narrow that probably only a lawyer could ask or be 

interested in the answer. But I am interested so I will ask it anyway. 

Mr. SERRANO. Are you a lawyer? 

Mr. SCHIFF. Guilty. 

The other, I hope we have little more broad interest. 

First narrow question is just curiosity in terms of Supreme Court 

jurisprudence. And that is, over the years the opinions seem to 

have gotten longer and longer. And some of the greatest Justices 

that have ever sat on the bench often wrote short opinions with 

great effect. I am curious, is the quality of the opinions going up 

with the length of the opinions? Or is the length necessary? Does 

it add? Is it that the issues are more complicated than they used 

to be, or we are just more talkative than we used to be? 


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And then the other question I have is I know that you are very 

active in terms of conferring with judiciaries around the world, 

which I think is an extraordinarily important part of your job. I 

wonder if you could share any thoughts you might have on anything that we can do in the Congress to further that work. I think 

it is an important element of democracy building. If you don’t have 

the rule of law, it is hard to have anything else follow from that. 

So I would be interested in your thoughts on both those questions. 

Justice KENNEDY. On the length of opinions, it might have something to do with the length of the statutes. 

Mr. SCHIFF. Oh, it is our fault? 

Justice KENNEDY. I am not sure the opinions are that much 

longer. I do think that the dissents and the majority seem to meet 

each other better. And that is an anecdotal, not statistical impression, because our reduced caseload enables us to adjust the opinions so that we are responding back and forth. I think they are better. I think they are more focused. 

Mr. SCHIFF. The problem is you have too small a caseload. You 

have to fit all those words in nonetheless, so you have to lengthen 

the opinions. 

Justice KENNEDY. I will hit the button. I am not sure that they 

are longer. 

Mr. SCHIFF. Well, perhaps not from 10 years ago. But it seems 

like when you compare it to 30 years ago or 40 years ago the opinions were quite a bit shorter, maybe literary in tone and less technical, certainly a lot less footnotes. I am speaking on behalf of law 

students everywhere who are suffering—— 

Justice KENNEDY. I have not used footnotes in years. 

Mr. SCHIFF. What is that. 

Justice THOMAS. He doesn’t use footnotes. 

INTERNATIONAL JUDICIAL VISITS

Mr. SCHIFF. Okay. In terms of the international question? 

Justice KENNEDY. International visits work two ways. We go 

there, they come here; both are very good. If you go to the Continental courts, typically there are, as you know, three Supreme 

Courts, the Supreme Administrative court, Supreme Constitutional 

Court and Supreme Court of General Jurisdiction, which means 

you have three dinners, three lunches, three speeches to give. But 

this is an era in which democracies worldwide are trying to establish an independent judiciary on our model. 

I was visited not long ago by the Chief Justice of Nepal, a country we do not think about very often. They had just undergone the 

tragedy where the Crown Prince committed a murder and then 

shot himself. There was a civil insurgency. This wonderful Justice 

came to visit, and he was basically trying to hold that country together. 

Judges check each other out. This was a learned, erudite, quiet, 

thoughtful, wonderful man. I said, ‘‘Thank you for visiting the 

Court,’’ and I took him out, down the steps. I said, ‘‘What can we 

do, Justice, to help your country?’’ And he said, ‘‘You have to keep 

doing what you do. You are a model to the rest of the world.’’ 


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Well, that was a gracious remark to make me feel good as the 

host and to recount for my colleagues, which I did. But it occurred 

to me that we are not doing enough. There are some real judicial 

heroes out there; in the State court system, including the elected 

judges, and in the international realm. And the verdict is out on 

whether some new countries, particularly in Eastern Europe, are 

going to be able to be successful with an independent judiciary, 

particularly in Russia. And we have much more work to do. It is 

very important. 

Mr. SCHIFF. Thank you. Thank you, Mr. Chairman. 

Mr. SERRANO. Thank you. 

Well, as an Appropriations Committee it is our role to suggest 

and put together the budgets for different agencies, and you know 

that this committee always respects the work that you do, and your 

budget request is always taken seriously. In fact, some would say 

that you get what you ask for. And it is our intent to make sure 

that you have what you need. It is always an honor for us, notwithstanding my uncertainty at times with the idea of you coming before us. You alleviated some of that concern, Justice Kennedy, by 

saying that the separation doesn’t mean we can’t talk to each 

other. Separation of power. So we respect that. 

And once again on behalf of the committee and all members of 

the Appropriations Committee in the Congress, we thank you for 

your service to our country. We thank you for your work. And all 

I can personally say is if you have to rule on McCain, make sure 

you include me. Thank you so much. 


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WEDNESDAY, APRIL 30, 2008. 

DISTRICT OF COLUMBIA 

WITNESSES 

ADRIAN M. FENTY, MAYOR, DISTRICT OF COLUMBIA 

NATWAR M. GANDHI, CHIEF FINANCIAL OFFICER, DISTRICT OF COLUMBIA 

VINCENT C. GRAY, CHAIRMAN, COUNCIL OF THE DISTRICT OF COLUMBIA 

CHAIRMAN SERRANO’S OPENING STATEMENT

Mr. SERRANO. The subcommittee will come to order. Good afternoon. 

Today the subcommittee will hear testimony on the fiscal year 

2009 budget for the District of Columbia. I would like to welcome 

Mayor Adrian Fenty back to testify before this subcommittee. The 

subcommittee also welcomes back the Chairman of the District 

City Council, Vincent Gray, and the Chief Financial Officer of the 

District, Dr. Natwar Gandhi. 

With the new leadership in the District of Columbia, this past 

year and a half has brought much excitement and anticipation for 

the residents of this city. Issues such as school reform and a slowing economy continue to make headlines in this region. I myself 

have been able to visit so many of the places here in Washington, 

D.C., but most exciting of its new attractions for someone like me 

is the new Nationals baseball stadium. 

I am aware that the fiscal year 2009 budget is currently under 

review by the City Council and will not be received by Congress for 

at least another month. The Mayor’s request is for a total of $9.9 

billion, including $6.1 billion in local funds, nearly a $141 million 

increase over 2008 levels. 

For fiscal year 2009, the District requested $155 million in direct 

federal payments. Notable increases over the fiscal year 2008 enacted levels are for the Water and Sewer Authority, emergency 

planning and security, and for the D.C. schools. The increase for 

D.C. schools includes a one-time payment of $20 million to jumpstart public school reform. 

I look forward to hearing more today about your plans in this 

area. As I have stated on previous occasions, I am honored to have 

the opportunity to work with the D.C. government to help it 

achieve its objectives. Since assuming chairmanship of this subcommittee, it has been my goal to ensure that Congress, specifically the Appropriations Committee, plays a supportive role in the 

District rather than an intrusive role as has been the case in years 

past. 

As a person who was born in Puerto Rico, a territory which 

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pathize with your plight and offer my support for full representation in Congress for D.C. residents. 

It is nice to see all three of you again, Mayor Fenty, Dr. Gandhi 

and Chairman Gray. I thank you for your hard work and dedication to the city. It truly seems that there is a new energy in this 

city, and I credit your combined leadership. I know that my staff 

finds your staff members very open and easy to work with. I hope 

that relationship continues until the day when I achieve my goal, 

which is putting myself out of business when it comes to overseeing 

the District of Columbia. 

At this time I would also like to recognize the man that we already paid tribute to and who is such an important ally in this 

cause, and who shares totally my concern, my respect and my desire for the best possible immediate and long-term future for the 

District of Columbia, our Ranking Member, Mr. Regula. We were 

speaking about this being his last hearing on this committee. 

All your other committees finish their hearings, too? 

Mr. REGULA. Uh-huh. 

Mr. SERRANO. So how many years, 30—— 

Mr. REGULA. Six. 

Mr. SERRANO. Thirty-six years in Congress. I think he had a little bit more than a couple thousand hearings; don’t you think? And 

here he is ready for this final one. 

Mr. Regula. 

MR. REGULA’S OPENING STATEMENT

Mr. REGULA. Thank you, Mr. Chairman. It is, of course, with regret that I leave some of these assignments. I have had a great interest in this city. I even volunteered for the subcommittee years 

ago when no one wanted to take the D.C. Subcommittee. I went to 

Silvio Conte and said, Silvio, I will take it if I don’t have to give 

up something else. And I did. And I worked with—who was from 

California? It was chairman—I can’t think of his name. 

Mr. SERRANO. Dixon. 

Mr. REGULA. Yeah, Julian Dixon, who had the same dedication 

to this city that this Chairman and I share. And I think we want 

to make it the shining city on the hill that all of America can be 

proud of. And, Mayor, I think you and your team are working in 

that direction. 

I have said over and over again the most important thing to the 

future of the Nation is education because we have to build on that 

to achieve all the other desirable goals. And you have taken on the 

responsibility with your team for the education system. And with 

Michelle Rhee’s enthusiasm and your great support, I think you 

can really make a difference in the lives of these children. And the 

greatest legacy that all of you will leave is to improve the education 

system of this city, and we will all take pride in it. 

So I look forward to your testimony. I congratulate you for all 

you and your team have already accomplished on behalf of the people of Washington. 

Mayor FENTY. Thank you. 

Mr. SERRANO. Before we begin testimony, I would just like to 

make two lighter comments that are very important to me. First 

of all, Mayor Fenty, I don’t think it was smart of you on the day 


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when you come for your budget here to run faster than me this 

morning in that race. You could have, you know—but my communications secretary came in ahead of you, so we are even. But that 

wasn’t fair. 

And secondly, on a real light note, but important to me, I have 

to be one of the luckiest men on earth, not only because I serve 

here and because I have health, but because my residence is two 

city blocks from Yankee Stadium and 17 walking minutes from Nationals stadium. Life is good. 

I now recognize Mayor Fenty, followed by Chairman Gray and 

Dr. Gandhi. I would like to remind you to keep your testimony 

down to 5 minutes. Your full written statements will go in the 

record, but the ability to have you speak only for 5 minutes will 

allow us to grill you and put you through all kinds of problems 

later. 

MAYOR FENTY’S TESTIMONY

Mayor FENTY. Thank you very much, Mr. Chairman, Ranking 

Member Regula, and distinguished committee members. It is a 

pleasure and honor to be here today to speak to you on behalf of 

almost 600,000 residents of the District of Columbia about the proposed fiscal year 2009 budget, which is entitled Getting the Job 

Done. 

As you mentioned, I have provided written testimony that describes our local and Federal funding priorities in more detail, but 

in the interest of brevity, I will offer some highlights here today 

and then would be happy to answer any questions. The District’s budget represents $5.7 billion in local funds and about $3.7 billion in Federal grants for Medicaid, education, transportation and other initiatives. This is our thirteenth consecutive 

balanced budget and it limits the growth of local fund expenditures 

to less than 1 percent at a time when the national economy calls 

for fiscal restraint. 

More than ever my administration will economize the way the 

District government works. Typically, the starting point for a proposed budget is the previous year’s funding level for services, plus 

increases for salaries, for fixed costs and for financing. This alone, 

however, would have reflected a 5.7 percent growth in the District’s 

budget. 

Instead, by building our budget from the ground up, by scrubbing 

out every unnecessary position and finding ways to serve our citizens more efficiently across the government, again the fiscal year 

2009 budget limits local funds growth to less than 1 percent, specifically .07 percent, the smallest amount of growth in approximately a decade as proposed. 

At the same time we continue to propose tax relief for low-income 

residents and for small businesses. For example, this year’s budget 

proposal includes changes to the District’s earned income tax credit, which would effectively eliminate income taxes for families making $25,000 a year or less. 

Education is the key to the District’s future, as both the Chairman and Ranking Member mentioned. No single priority of this 

government is more important than education. I am extremely 

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provements in our public schools. I particularly want to acknowledge you, Mr. Chairman, and also Ranking Member Regula, for 

your interest and support. I know you are aware of the dramatic 

changes since Chancellor Rhee took over the system last June in 

2007. Today we come to you to ask for your support for $38 million 

in Federal funds that are part of the President’s budget request, 

which we believe will significantly enhance our reform efforts. 

In addition to education funding, this subcommittee has made 

many investments in other key programs in the past. At our request, the President’s fiscal year 2009 budget contains funding for 

several of the same items, specifically reimbursement for emergency planning and security costs, continued support for our new 

local forensics evidence laboratory, more funds to renovate public 

libraries, and improvements to the combined sewer system to help 

protect the Potomac and Anacostia Rivers from pollution. Mr. 

Chairman, you are right, we both got a bird’s-eye view of how 

much the Anacostia River needs that protection during the otherwise very successful Capital Challenge this morning. I hope you 

will continue to support these important projects, and I am happy 

to discuss any of them further with you. 

In conclusion, as the District’s Mayor, and as a lifelong resident 

of this great city, I view Congress as a critical partner in our work 

to improve the lives of District residents and the experience of visitors to the Nation’s Capital. I look forward as Mayor to continuing 

to work with all of you on our mutual goal of making Washington, 

D.C., not only a Capital City, but a world-class city without equal 

anywhere throughout the would. 

This concludes my prepared remarks, and I am happy to answer 

any questions. 

Mr. SERRANO. Thank you. 

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Mr. SERRANO. Chairman Gray. 

CHAIRMAN GRAY’S TESTIMONY

Mr. GRAY. Good afternoon, Chairman Serrano, and Ranking 

Member Regula and other members of the Committee on Appropriations Subcommittee on Financial Services and General Government. I am pleased to speak to you today about the District’s appropriations and other operational items. 

As the Mayor has indicated, he has proposed an overall budget 

for fiscal year 2009 of nearly $10 billion, which represents an increase of $200 million, or 2.1 percent, above the fiscal year 2008 

approved budget of $9.2 billion, or nearly $10 billion also. 

The proposed local budget is $5.7 billion compared to last year’s 

or the current year’s $5.62 billion, and, as the Mayor has indicated, 

a very small 7⁄10 of 1 percent increase. Again, as the Mayor has indicated, it reflects our efforts to try to control costs. 

The Council has enthusiastically joined with the Mayor and is 

completely committed to improving our educational system in the 

District of Columbia and, of course, the performance of our students. The Council also has heartily supported education reform 

and is at the threshold of finalizing legislation that will make prekindergarten available to every 3- and 4-year-old in the city whose 

families want them to be in such a program. 

The District also is focused on improving its library system. We 

have committed $75.6 million in local funds through fiscal year 

2009 toward the improvement of seven branch libraries and $22.3 

million in fiscal year 2009 to restore and modernize the historic 

Georgetown branch library. I ask that you support the President’s 

proposal for a payment of $7 million. 

The Council supports the continuation of the Federal payment 

for school improvement. Because of the success of this education 

strategy, the President has increased the three-sector funding for 

fiscal year 2009 to $54 million. Next year the President has proposed an additional $20 million to help jump-start public school reform. I ask that the committee include both of these funding proposals in its bill. 

The Tuition Assistance Grant Program has been very successful 

since its inception 7 years ago. I want to thank the President for 

including full funding for the program in the fiscal year 2009 budget, and I ask the committee to approve the $35.1 million included 

in the President’s budget. 

Last year this committee helped us to enhance our attack on 

HIV/AIDS in the city by removing the prohibition on the expenditure of our local funds for needle exchange programs. I want to 

thank you, Chairman Serrano, and the committee for this and ask 

that you continue to exclude this former general provision from our 

appropriations bill. 

The District of Columbia is seeking an increase in the match rate 

for our foster care and adoption programs to make it equivalent to 

the Medicaid program. The match rate for foster care and adoptions in other jurisdictions across the country is at the Medicaid 

match rate. The President’s fiscal year 2009 Federal Department of 

Health and Human Services budget references the proposal for this 


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increase. I ask you for your help in obtaining inclusion of this increase in the fiscal year 2009 HHS budget. The President has allocated $5 million in his 2009 budget for the Consolidated Forensic Laboratory and $5 million for reimbursement to the FBI for laboratory work. The overall costs for the laboratory is $219 million. The District continues to seek a 27 percent 

match of the total cost by the Federal Government. 

The fiscal year 2009 request for protection and security for the 

Federal enclave includes costs for planning and security related to 

the Presidential inauguration. I ask that the committee fully fund 

the planning and security costs associated with the Federal presence and provide assistance in obtaining reimbursement for the executive transport/escort service the city provides for the President, 

Vice President, First Lady, as well as the frequent deployments of 

fire and emergency medical services equipment to helicopter arrivals. 

I also request the support for two bills currently pending in the 

House, H.R. 733, the District of Columbia Budget Autonomy Act of 

2007, introduced by Congresswoman Norton and Representative 

Tom Davis; and H.R. 1054, District of Columbia Legislative Autonomy Act of 2007, introduced by Congresswoman Norton. Passage of 

these two bills will avoid the delays the current congressional process creates and will assist the District in operating more efficiently 

and effectively. 

I also would like to end my testimony by thanking you and the 

other Members of the House for your support of and passage of 

H.R. 1905, District of Columbia House Voting Rights Act of 2007. 

I ask your continued support by helping the District gain approval 

of this bill in the Senate. This is vitally important to the District 

of Columbia citizens, both Republican and Democrat. As leader of 

the free world, America should be an example by providing all citizens the right to full citizenship. 

In closing, I would like to ask you to pass this year’s budget request in time for the start of our new fiscal year without riders. 

I thank you, Mr. Chairman and the other members of the committee for this opportunity to share our thoughts, and I will be 

happy to answer any questions you may have. 

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DR. GANDHI’S TESTIMONY

Mr. GANDHI. Thank, you Mr. Chairman, Chairman Serrano, Mr. 

Regula, and members of the committee. I am Natwar Gandhi, 

Chief Financial Officer for the District of Columbia government. 

This has been an exceptionally challenging budgeting and planning cycle for the Mayor. This February our revenue projections indicated a decline from the December revenue estimate of about 

$621⁄2 million for fiscal year 2009. For the Mayor the greatest challenge was to control spending in light of a drop in projected revenue. The resulting proposed budget is, for the 13th consecutive 

year, a balanced budget. 

Since the budget was submitted on March 20th, the Council and 

Chairman Gray have already been hard at work. We will continue 

to work diligently with everyone in this collaborative process. 

Our strong financial standing, with the $281 million surplus in 

2007, is a testiment to the steadfast commitment of the District’s 

elected leaders to sound fiscal management. This steadfast commitment has resulted in a $2 billion turnaround, from $518 billion deficit to a billion and a half positive fund balance. 

As you can see here in this chart, Sir, it is important to note that 

of that $2 billion increase in fund balance, nearly half was accumulated since the end of the Control Period. Indeed our turnaround 

from junk bond status was faster than any other city that has undergone a similar period in financial crisis, including New York, 

Philadelphia, Cleveland and Detroit. We have had a fund balance 

that is still among the highest in the Nation, substantially improved bond ratings, and a well-deserved respect in the financial 

market. 

This time last year the economic outlook for the District was 

similar to that generally forecast for the Nation as a whole; no 

major disruptions and steady growth in employment, wages and income, but at rates slightly below those experienced in 2006. 

This year, however, the outlook is far less positive. It reflects the 

downturn in the Nation’s economy and the far-reaching effects of 

the troubled mortgage and housing market. In the past 3 months 

the national and the District economies have slowed down. Indeed, 

some financial observers, including the Federal Reserve Chairman, 

are concerned about possible recession in the near term. 

We have observed the slowing in District home sales activity as 

well as the stock market and the overall base of economic activity. 

This slowdown, in combination with recent legislative changes, has 

resulted in an estimate of total revenue less than we expected as 

of last December. Similarly for our May revenue estimate, we are 

closely monitoring April tax collections and the evolving economic 

picture for any signs that the revenues are growing even more 

slowly. 

There are two issues that I do need to raise before I conclude, 

and those relate to our debt burden and tax burden. The District 

faces a wide variety of infrastructure needs facing great demands 

on its Capital Improvements Plan and the resulting borrowing. It 

is difficult to compare the District to other jurisdictions, because it 

is responsible for the multiple functions that normally are associated with those of a city, a county, a school district and a State. 


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Using the ratio of total tax-supported debt to population, the District is dramatically out of step with other large cities. Compared 

to the District’s $10,000 per capita debt to New York City’s less 

than 7,000, Chicago’s 4,000; Boston is 1,800, and Baltimore is 

around 1,200. This leads to the broader issue of the challenge of 

addressing the District’s comparatively high spending needs with a 

restricted tax base. 

The District, as the urban center of a large metropolitan area, 

houses a disproportionately large share of very poor and needy people. The District’s overall poverty rate of 19 percent and child poverty rate of 33 percent are among the highest in the Nation, and 

more than three times the comparable rates across the neighboring 

counties. Unlike other urban jurisdictions, the District cannot pool 

resources across the areas from the same State to serve its urban 

poor. 

In this environment of high expenditure needs, the revenue challenge is equally great. Now, here is where the U.S. Congress plays 

an important role. Kindly permit me to briefly note two areas that 

merit continuous attention. Both go to the unfunded mandates that 

restrict the District’s own taxing power. One, the prohibition on 

taxing the income earned by nonresidents including those who commute into the city on a daily basis. That 66 percent of the income 

is earned by nonresidents makes the simple point. 

The District has an especially high concentration of nontaxable 

real property, much of it off the tax rolls due to the presence of the 

Federal establishment. Because of this unfunded congressional 

mandate, our residents must shoulder a disproportionate share of 

the cost of the public services, while the benefits generated by this 

city are shared by a much larger community. 

Our thirteenth consecutively balanced budget attests to the fact 

that we have not allowed these mandates to become an excuse for 

fiscal irresponsibility. District residents, through higher taxes, pay 

for these mandates. The looming danger, given the economic conditions in the Nation combined with the District’s high expenditure 

needs, is that should our revenue growth slow down, District services would be severely impacted. 

Mr. Chairman, that briefly concludes my oral comments. I would 

like to take this opportunity to stress the particular challenges the 

District faced in preparing this budget in an environment of declining revenues. The leadership provided by the Mayor and the council allowed the District to produce this balanced budget for the proposed 2009 year. As a result we certify that the 2009 budget and 

financial plan as proposed is balanced for 2009 and beyond. 

I would like to thank you, Mr. Chairman and Mr. Regula, for 

your leadership and this committee for its diligent and continuous 

oversight work on the District’s finances during the sustained recovery period. We look forward to continuing to work with you and 

this subcommittee during the forthcoming budget deliberations. 

Thank you, sir. 

Mr. SERRANO. Thank you. 

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QUARTERS PROGRAM

Mr. SERRANO. Thank you to all three of you for your testimony. 

Before we get on to these very difficult questions we have for you, 

we deal with a lot of serious issues in Congress, but every so often 

we deal with something that makes us feel good. I feel good we 

were able to include D.C. and the territories in the quarters program. As you know, a quarters program putting a State on every 

quarter was to end this year, and D.C. was not included, and neither were the territories. I represent the Bronx, but I was born in 

Puerto Rico, so I am looking out for both places, and D.C. goes 

first, for obvious reasons. I am trying to convince them that Puerto 

Rico should go second, but that is another issue. 

My question is, is the design ready? Has it been approved for the 

quarter? 

Mayor FENTY. We have it down to three designs, and the decision 

will be made very fast. 

Mr. SERRANO. Okay. 

Mayor FENTY. We can get you a copy of all three. All three are 

excellent. And we just want to thank the committee, and also Congresswoman Norton, for your support on this issue.. 

Mr. SERRANO. I think it will do two things. It will give the respect in this way, some respect that the District and the territories 

deserve. But my point is that wherever Americans live under the 

American flag, they should be treated equally in every way possible. And some child somewhere is going to ask his Mom, how 

come D.C. is on the back of a quarter; and Mom will either say, 

wait until your father comes home, or will give the answer, or say, 

we will go to the library tonight or we will Google it and find out. 

I think it is an important thing, and I am looking forward to the 

design. No need to put my picture on the back of the quarter. That 

would be totally improper 

D.C. PUBLIC SCHOOL REFORM. 

Mayor Fenty, some would say the most public battle you have 

taken on during the last year is the overhaul of the D.C. public 

school system. We hear about many initiatives including buyouts 

and school closings. This also happens to be the item for which you 

are asking for the largest increase from this subcommittee. 

Could you discuss your vision for transformation of the school 

system? Also please discuss how your budget request for $20 million to jump-start the public school system as well as the $54 million requested for school improvement fits into your plan. 

Mayor FENTY. Thank you very much, Mr. Chairman. 

The general vision is that at the end of the day, the District of 

Columbia’s public schools will have the same level of excellence as 

any particular public school system you could pick anywhere in this 

country or any private school or public charter school or anything 

else. The citizens of the Nation’s Capital deserve it, and just like 

a lot of other cities, we have been behind for so long. 

What we have tried to do in the past 10 or 11 months since we 

took over this school system is to give Chancellor Rhee all of the 

flexibility, independence and autonomy to run the system as if 

there weren’t all of the bureaucracies and cumbersome regulations 


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of government, because, to be quite candid with you, with 25 to 30 

years of just heading in the wrong direction of a school system, she 

needs to move fast. So what we have done with the support of the 

Council and Chairman Gray, is allow her to hold administration officials accountable, to be able to consolidate schools where necessary, and to have the revenue that she needs. 

So she has laid a lot of people off; she has scrubbed some programs. We are putting about 40 million new local dollars into the 

classrooms without increasing the size of the school’s budget. What 

she expects to do with the additional money that is before your 

committee is to use it for new programs. 

One of the highest-profile things that Chancellor Rhee wants to 

do is have a new agreement with the Washington Teachers’ Union, 

an agreement that would be very equitable where she would have 

more opportunity to hold teachers accountable, but where she 

would be able to provide them more resources, including bonuses, 

and merit pay along the way. We think it will be a model agreement, but we will need additional funds to be able to pay for it. 

This is a great start. 

Mr. SERRANO. And obviously it has support in the community 

and in the local press also, from what I understand. 

Chairman Gray, I know you and other members of the City 

Council have voiced concerns during the past year of or about the 

school reform measures. Could you comment on the Mayor’s plan 

to transform the schools? And are you hearing concerns from the 

constituents to the City Council? 

Mr. GRAY. Well, first of all, let me underscore that we enthusiastically and heartily support education reform, and we were delighted to join with the Mayor in embarking on this journey. One 

of the things we did at the very outset last January was to make 

education a committee of the whole issue so that every council 

member was a part of education reform. The Council voted overwhelmingly to support education reform. And then we made several other crucial votes. One was to give the Chancellor the ability 

to have more flexibility in how she addresses nonperformers in administrative positions in the school system. 

I think at every step of the way, the Council has done two things. 

One is it tried to be a good steward on behalf of the citizens that 

we represent, to ask the difficult questions. But at the end of the 

day, we have been convinced that what has been proposed to us 

was the direction that should be pursued, and we have supported 

that enthusiastically. 

HIV/AIDS PREVENTION PROGRAMS

Mr. SERRANO. Mayor Fenty, at this time last year we discussed 

my belief that Congress should remove the controls it has placed 

on the city throughout the years, on the District. We were not as 

successful as I would have wished for last year’s bill. One item 

which I am most pleased about is the removal of the ban on the 

needle exchange program in the District. Can you discuss how you 

have implemented a city-supported needle exchange program? 

What other measures is the city taking to try to stop the spread 

of HIV/AIDS? 


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Mayor FENTY. Thank you, Mr. Chairman, Congresswoman Norton and Ranking Member Regula. This is a measure that you have 

undertaken to remove this as a rider from our budget, which has 

had, without any hyperbole, life-and-death consequences and positive ramifications on the city. 

There has been a group called Prevention Works that has worked 

in the city for years now. They have all privately fund-raised and 

have similar groups in other jurisdictions, most notably Chicago 

and I am sure New York as well, who provide clean needles. We 

would like for everyone to be substance-free, but in this day and 

time it is just not a reality. So while we know people may be using 

unclean needles, it is great to have these organizations that are 

working to provide people with clean needles, which we know prevents the spread of HIV/AIDS. 

Within days of the legislation becoming effective, the city wrote a $300,000 grant to Prevention Works for needle exchange. We are 

now working with our HIV/AIDS Administration to develop the capacity of many other local organizations to do the same thing. 

Some of the other things that our new HIV/AIDS Administrator 

Shannon Hader and my new Health Director Pierre Vigilance are 

doing includes marketing, working with the schools, including 

grants that have been set up by the City Council to put resources 

to nonprofits that are working east of the river, where there is the 

greatest prevalence and growth of HIV/AIDS. 

We have one of the most renowned experts in the country, Dr. 

Shannon Hader and a lot of people are recognizing our results. 

Independent groups like Appleseed have increased our scores and 

grades for what we are doing on HIV/AIDS. We are glad to supplement the testimony and get you more information. 

[The information follows:] 


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Mr. SERRANO. That is wonderful. 

The subcommittee is proud to welcome a special guest, Congresswoman Eleanor Holmes Norton, to the committee. In Yiddish there 

is a phrase that we Puerto Ricans know well; it is ‘‘nudge.’’ A 

nudge is a person who pushes and pushes and pushes. And this 

person, on behalf of D.C., pushes and pushes and pushes, and we 

are very proud to have you on the panel today. 

Mr. Regula. 

SCHOOL DROPOUT PREVENTION

Mr. REGULA. Thank you, Mr. Chairman. 

Just a couple of questions. I put most of my questions in the 

record in the interest of time. 

Mr. REGULA. One of the problems that confronts the school system is dropouts, as you well know. What success have you had? Do 

you have programs to try to address that? And do you get some of 

the institutions in the area of higher learning to bring in some people, maybe offer courses in the high school so that young people 

have an idea that maybe they can go to college? If they haven’t 

thought about it, but if they get some exposure, that could be one 

of the ways of addressing it. But I would be interested in your comments on the dropout rate generally. 

Mayor FENTY. A huge issue, as you know, Congressman. What 

the Chancellor envisions is having middle schools and high schools 

that challenge the young people, and stimulate them, and excite 

them so they won’t want to drop out. That is why the $40 million 

additional going to the classrooms is for arts, language, music and 

either vocational education on one side or AP classes on another, 

and enhanced sports as well. These things are a big part of keeping 

kids engaged so you will see a lot of that, you will see a lot of the 

encouragement. 

Ms. Rhee also believes, and I support her 100 percent on this, 

that after-school activities are extremely important, because we 

only have the kids from 9:00 to 3:00 in the schools. So by next year 

she will have a comprehensive after-school program in every school, 

where we make sure that we are keeping the kids engaged, they 

are learning something, and they are excited. No matter what is 

happening in their own community or at home, we don’t want that 

to detract from their educational experience. 

I think that is the general vision of the Chancellor, and we have 

made great strides, and this budget which is before you will allow 

us to make even more. 

THREE-SECTOR EDUCATION FUNDING

Mr. REGULA. Do you support the three-sector education funding 

that the President has requested? I assume you worked out the details with the White House. 

Mayor FENTY. That is exactly correct. The Chancellor has been 

engaged in discussions, as has the City Administrator, going well 

back into the winter. While there are a lot of details, the essence 

of it is that by strengthening the entire education system in the 

District of Columbia and putting more money into the public 

schools, we think we are going to have a world-class education system. 


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And I agree with the Chancellor 100 percent, that in the District 

of Columbia we have to be supportive of education in as many different arenas as humanly possible, and we have tried to do that. 

Mr. REGULA. Chairman Gray, I assume, speaking for the council, 

you would take the same position? 

Mr. GRAY. We do. We certainly support the three-sector funding 

and look forward to those additional resources. Focusing as the 

Mayor has on public education, we need every resource available 

to us now to quickly jump-start our system. 

Mr. REGULA. Mayor, would you support an increase in the stipend for the high school students—in the scholarship program so 

they would have greater choices? 

Mayor FENTY. Well, the Chancellor worked very hard on what 

was submitted by the White House through OMB, and so before we 

would make any changes, any additions or decreases, I would want 

to go back to her point people in the Federal executive. 

What I can say is that the package before you, the quote/unquote 

package, of three-sector funding has been worked on by all three 

different sides, and I think it is the right compromise for right now. 

Whether there should be adjustments in the future I can’t say, but 

I can say you have the support of this administration to work with 

you. We would like to have everybody at the table before we would 

say yea or nay to any additional changes. 

Mr. REGULA. Certainly I congratulate you, and the council, and 

the administration on putting an emphasis on education, because 

that is the future of the young people in this community and the 

community in general. 

Mr. Chairman, I will put the rest of my questions in the record. 

Mr. SERRANO. Thank you, Mr. Chairman. 

Ms. Kilpatrick. 

D.C. STATEHOOD

Ms. KILPATRICK. Thank you, Mr. Chairman. 

Good to see you all this year. 

It is my understanding that there are about 600,000 residents in 

the city—the State of D.C., and of that 600,000 in the State, you 

generate among them $5.7 billion—was that the number that I 

heard this morning? 

Mayor FENTY. Yes. 

Ms. KILPATRICK. Of your own money, $5.7 billion comes from the 

residents who live here. 

Mayor FENTY. Correct. 

Ms. KILPATRICK. And $3.7 billion is what the Federal Government gives you on Medicaid and other categories. 

Mayor FENTY. Yes, ma’am. 

Ms. KILPATRICK. I am hopeful that as we have a new administration in November, we will be able to move forward with D.C. statehood. It is time. 

Mayor FENTY. Thank you very much. 

Ms. KILPATRICK. There are many other States, three or four 

other States, and it is just time. You deserve two Senators and a 

Congressperson, and we hope that we can move forward on that 

next year. 


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CAP ON ATTORNEY FEES FOR SPECIAL EDUCATION CASES

As we discussed, there were caps on your attorneys’ fees for disabled children. Something was worked out. I never heard the 

final—my staff is kind of keeping me up. How does that work now? 

We didn’t need legislation. Was the cap removed, and are the children being represented adequately? 

Mayor FENTY. My understanding, as I recall it, the cap is still 

in place. The cap is still in place, but what the Chancellor has tried 

to do is—for some reason, prior to us taking over the system, DCPS 

would fight everything. We would just fight all of the legal cases, 

no matter whether or not we knew that we weren’t providing the 

services required by Federal law. So what you will see the Chancellor do is to say, ‘‘listen, we know that the system is broken.’’ In 

some cases, instead of fighting and driving up exorbitant legal fees 

and not serving the child, we will just serve the child and just stipulate with the attorneys that things are not as they should be. 

We think that is going do two things. It is going to allow the 

cases where there is really some disagreement to go through, and 

hopefully the attorneys will get what they need and will fight for 

the kids. In cases where we just know we have done wrong, we are 

going to provide the service for the kids. In the Chancellor’s budget 

there is a lot of improvement on special education, most notably in 

creating lab schools in the public school system in the District of 

Columbia. 

Ms. KILPATRICK. So the cap itself maintains itself. 

Mayor FENTY. Correct. 

Ms. KILPATRICK. It is not a detriment to getting the representation it needs to have for the children. 

Mayor FENTY. I think by ending the automatic dispute, by saying 

we know we have done wrong in some cases, and saying, listen, we 

know we need to fix this, I think you will see a lot quicker results 

for the children. We are working very closely with anyone who is 

advocating for children, especially those who may need special 

services. 

Ms. KILPATRICK. That is good. 

FEDERAL FUNDING OF D.C. 

In the Federal request for 2009, I notice the Executive Office of 

the Mayor is zeroed out, as is the chief financial officer zeroed out 

for Federal funds. Does that mean the general fund of D.C. will be 

used to compensate that, or you don’t need any dollars there? 

Mayor FENTY. Well, I don’t know if there was a special provision 

last year. What I am being told is that there were some grants that 

went through the EOM. 

Let me actually yield to the CFO. He probably knows this chapter and verse. 

Mr. GANDHI. That is true that this is basically the flow-through 

grants that go through our offices. 

Ms. KILPATRICK. We don’t have any for you at this time? 

Mr. GANDHI. I am sure you will, but later as the budget process 

goes through the Hill. 


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Ms. KILPATRICK. Right. You didn’t as the budget was being prepared, but we are hopeful that we will have more grants for D.C. 

as we go forward. 

Mr. GANDHI. Right. 

Ms. KILPATRICK. I, too, want to commend you as an educator and 

a grandmother. Education is the key. You get a good education, you 

have some options; if you don’t, then unfortunately you have other 

kinds of problems. 

In China and India they spend 70 percent of their Federal dollars on education. 

Mayor FENTY. Wow. 

Ms. KILPATRICK. In our country we spend 2 percent of this $3 

trillion budget on education and then leave it to the States. There 

is something very wrong with that. So we need people like yourselves, Mr. Chairman, and others who have that vision. When we 

shortchange the children now, we pay for it later. So I want to commend you for what you are doing. 

Mayor FENTY. Thank you. 

Ms. KILPATRICK. And I look forward to continuing working with 

you. 

Mr. SERRANO. Thank you. 

You are a grandmother? 

Ms. KILPATRICK. Absolutely. Five, I know I don’t look like it. It 

is great. 

Mr. SERRANO. It is good to score points with the Vice Chairwoman. 

Mr. Alexander. 

FEDERAL FUNDING FOR D.C. EDUCATION

Mr. ALEXANDER. Thank you, Mr. Chairman, Mr. Mayor, members 

of the table, thank you for being here. Mr. Mayor, the administration’s budget has provided $74 million 

to improve K–12 education in the District, which you have identified as a top priority. And it expands upon the successful three-sector education strategy, an effort to help all sectors of education in 

the Nation’s Capital. The budget provides $20 million to jump-start 

reform initiatives for the District’s traditional public school system, 

where your office has assumed more responsibility and is committed to building on key principles of the No Child Left Behind 

Act. 

Eighteen million dollars is provided to support public charter 

school development and quality. D.C. has a particularly high percentage of students enrolled in charter schools. Ensuring the 

schools are high quality is, of course, extremely important. This 

$18 million will enable the continuation of the D.C. Opportunity 

Scholarship Program that provides low-income District parents 

more options for obtaining a quality education for their children. 

Under the three-sector approach, funding has flowed to these 

three branches. Each year the charter schools are receiving $13 

million each more than they would have otherwise. Do you feel 

that this has been an effective funding strategy? 

Mayor FENTY. I am sorry, did you ask if I feel that it has been 

effective? 

Mr. ALEXANDER. Effective. 


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Mayor FENTY. I do. But more importantly, I think the people I 

have appointed to be subject matter experts in education feel that 

it has. 

One of the things that is important in the District of Columbia, 

because we are so far behind on education, is that we educate the 

children and give them excellence by any means necessary, and as 

quickly as humanly possible. It would almost be hypocritical for 

me, with the type of shakeups that we have been pushing for in 

the school system, to not recognize there are other ideas and other 

people outside the traditional public school system who bring ideas 

and creativity, and energy to educating our children in the District 

of Columbia. 

And so, again, I will repeat what either Chancellor Rhee or 

Chancellor Joel Klein in New York, who Congressman Serrano 

knows very well, has said before: If someone is providing an excellent education to a young person in the District of Columbia, they 

are going to have the support of this administration; and those who 

do not will not have our support, and that could be in the public, 

private or public charter schools. 

COURT-APPOINTED SPECIAL ADVOCATE PROGRAM

Mr. ALEXANDER. I would like to talk to you about the court-appointed special advocate organization. As you know, CASA, as it is 

called, are trained volunteers who represent children in cases of 

abuse and neglect in the District of Columbia family court system. 

Approximately 4,000 cases of abuse and neglect are currently in 

the D.C. Court system, and 1,500 new abuse and neglect cases are 

brought before the D.C. family court every year. 

The CASA for Children of D.C.’s goal is to recruit and train an 

advocate to serve every one of the abused and neglected children 

in D.C., all toward the goal of matching each child with a permanent and loving family. It is my understanding that the CASA has 

actually saved the District money. I wonder where CASA fits into 

the D.C. budget and priority list given its enormous impact on the 

District and whether you plan to fund it or not. 

Mayor FENTY. We do, Congressman. They were funded in this 

year’s 2008 budget, and they will be funded in the 2009 budget as 

well. Like you, we recognize the enormous amount of great work 

they have done for young kids in our child welfare system. 

Mr. ALEXANDER. Thank you, sir. 

That is all, Mr. Chairman. 

Mr. SERRANO. Mr. Cramer. 

Mr. CRAMER. Thank you, Mr. Chairman. 

NATIONAL CHILDREN’S ALLIANCE

Mr. Mayor, welcome before this subcommittee. 

I have been in the U.S. Congress since the early 1990s, and, as 

my colleagues, we live here in the District of Columbia almost as 

much as we live back in our home districts. Unfortunately we don’t 

get to enjoy the District as much as we would like, because we are 

constantly going back home as soon as our session is over with. 

However, think back on what the District was like in the early 

1990s versus what it is now. It is a totally different place, and it 

is our Nation’s Capital. We need to be proud of what goes on here. 


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I congratulate you. You are off to a good start. I followed your career there. 

I do want to bring up, since my colleague Mr. Alexander brought 

up the CASA, Court-Appointed Special Advocates, in my prior life 

I was a district attorney in north Alabama, and we put together 

a pilot new program to interview with physically and sexually 

abused children, and we called it the Children’s Advocacy Centers. 

We started there in north Alabama; there are 7–, 800 of them 

around the country now. We couldn’t believe that what we started 

to try to rescue these kids and hold the offenders accountable and 

then provide services to restore their lives and their families’ lives 

would be copied by communities around the country. 

But I came to D.C., and we worked with the task force here for 

a number of years to establish the Safe Shores Program, and it was 

a newcomer. It needed to be here because we have a lot of kids that 

are in the system here that—their situations need to be addressed. 

But the nonprofit that is the pilot of this, the National Children’s 

Alliance, moved here to D.C. I have to tell you, their involvement 

with D.C. government from the get-go was a nightmare. The National Children’s Alliance was going to collocate with Safe Shores, 

and we found a firehouse on the other side of the Hill, on the Senate side across from the Hyatt Regency, that had been shuttered 

for years, and we were going to move together in there. This membership organization was going to occupy some administrative 

floors upstairs, and this working child abuse intervention program, 

Safe Shores, was going to be downstairs. It would be in a firehouse. 

What a nice image for kids to come into that that are going to have 

to tell what I would not want any child to have to tell. 

But the control board then sort of intervened and took over and 

delayed that decision and delayed that decision. But then we 

looked with the city’s help—or the District’s help, we looked at 

Gales School and another older school on the Senate side as well. 

We got excited about that collocation. In fact, that was authorized 

in the 2002 budget and then funded to the tune of $7.3 billion, but 

this city pulled or cancelled those plans in 2004 because city administrator Robert Bobb—I think I have the name right—decided 

that was not an appropriate use for that particular site. So once 

again, after years of awaiting, an expectation that was pulled 

again. 

The downside, the National Children’s Alliance spent money with 

the city’s understanding, cooperation and participation with architecture plans to show what that school could be converted to for 

Safe Shores’ benefit, for the National Children’s Alliance benefit as 

well, and they lost that money when that project was pulled. So 

they went their own way and bought property in another location. 

Safe Shores went another way there. But we have a claim in the 

city or District process for reimbursement for that money. I know 

this is new to you. 

Mayor FENTY. Yes. 

Mr. CRAMER. Hopefully it is not new to your folks. Would you all 

take another look at that? That thing has just been stalemated for 

so long, and I think there are some equities there that we need to 

look at together. Sorry you had to listen. 

Mayor FENTY. Oh, that is fine. 


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Mr. CRAMER. Along the way, Safe Shores got created. We have 

hosted groups here from all around the country, Columbus, Ohio; 

Chicago before they built their programs. Sent task forces in here. 

Together we hosted them as Safe Shores, and they went back to 

their communities and built their programs and established an 

even stronger model for the rest of the country. It has been a terrific partnership, nonprofit, that helps the public sector, too, because your Child Protective Service workers get a chance to work 

in an environment at Safe Shores that they wouldn’t get if there 

wasn’t a Safe Shores. 

I think there are a lot of issues involved. I will address a letter 

to you and help you see what our concerns have been and what the 

history has been, and let’s see where we can go with that. Thank 

you. 

Mayor FENTY. We will follow up with you, Congressman, and the 

Chairman right away. 

Mr. CRAMER. I thank the Chair and the committee’s indulgence 

over that. 

Mr. SERRANO. No, we thank you for that. 

Mr. Ruppersberger. 

By the way, congratulations. I see the Orioles are in first place. 

Mr. RUPPERSBERGER. Let me ask you one question, Mr. Mayor: 

Do you like the Yankees? 

Mr. SERRANO. I think I can answer that for him. He loves the 

Yankees. 

Mr. RUPPERSBERGER. I withdraw that question. I wouldn’t put 

the citizens of Washington in that position at all. I withdraw that 

question. It is a little thing we have: going between the Orioles and 

the Yankees. 

WASHINGTON METROPOLITAN AREA TRAFFIC

First, I want to say leadership starts at the top. Your team have 

done an excellent job. Management is about hiring the best people. 

Working with your county council, it is so important to have that 

check and balance, share the credit and set your mission. You have 

to have good people. I think your priorities are in order. Any major 

metropolitan area needs to prioritize. 

With that said, I am going to get into the area of infrastructure. 

That is the issues of traffic. Those of us who travel in D.C. and who 

have been involved in local government understand there is a lot 

more that we could probably do in D.C. The traffic situation has 

evolved, and it is pretty bad. And we in this area, the Virginia, 

Washington and Maryland area, are facing a problem, probably 

worse if we don’t deal with it in the next 10 years, as bad as LA. 

We have to really address the issue. A lot of it is getting people 

out of cars into rail, those type of issues. 

What I want to raise with you and would like to work with you 

on that, and I have had conversations Chairman Oberstar and 

Chairman Serrano. Chairman Oberstar is Chairman of the Transportation Committee in the House. We have a BRAC (Base Realignment And Closure) process. My district, MD–02 goes from Fort 

Meade to Havre de Grace; but Fort Meade, NSA, BWI airport, all 

in that area. So we are going to have a tremendous number of peoVerDate Aug 31 2005 03:36 Jun 24, 2008 Jkt 042830 PO 00000 Frm 00200 Fmt 6601 Sfmt 6602 E:\HR\OC\A830P2.XXX A830P2

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ple coming from Virginia and Washington working in these areas 

because of BRAC 2005. 

I did some research, University of Maryland College Park and 

also the University of Minnesota. There are groups within the colleges themselves who are getting educated in the transportation 

area with studies. The focus of the studies is to improve not only 

signage, but to use technology to synchronize our lights, to study 

where we can improve the traffic, how we can improve the traffic. 

In order to improve traffic it can’t be one street at a time. It is look 

at the whole picture of traffic. I think this is something extremely 

important for the Nation’s Capital and for your constituents—— 

Mayor FENTY. Yes. 

Mr. RUPPERSBERGER [continuing]. And for Congresswoman 

Holmes Norton’s constituents, that we work together and it ties in. 

It is not just D.C.; it is people coming from D.C., Virginia, Maryland, this whole area. 

I would like to make contact with you after this hearing and talk 

to you about that and maybe attempt to talk to the Chairman 

about it with the possibility of getting some monies for a study to 

deal with the issues of traffic. Traffic not only deals with the issues 

of moving people, people sitting in their cars going to work, they 

waste a lot of time, it is also a quality-of-life issue for your constituents. 

Mayor FENTY. We would appreciate working with you. As a 

former county exec, you know you how important this is and how 

politics is local. So I think both because of your jurisdiction and 

your congressional district and then how regional traffic issues impact the city, it would be a great partnership. So you have my complete support. I would be glad to have my staff reach out to you 

immediately right after this hearing. 

Mr. RUPPERSBERGER. Okay. 

GANG TASK FORCE

The other thing is the issue of gangs. We were able within the 

CJS subcommittee to get monies—and, by the way, crime has no 

geographical boundaries new to gangs—and to get monies to go 

from Philadelphia to North Carolina, including the District, and to 

really work with a database that will get real-time information on 

where we are and identifying gangs throughout the whole area. If 

there is a lot of law enforcement—for instance, there is a lot of 

focus in northern Virginia, and the gangs move into the District 

and into Maryland. 

So this gang task force is a task force that will use technology, 

but also another component of this is to deal with the issue before 

the kids get to gangs. The reason kids go to gangs, because their 

family is worse than what they feel they are getting in the gang, 

and the gang becomes their family. So we are dealing with different communities to try to reach to the children ahead of time. 

So I think it is also important to communicate about meeting with 

your police chief. 

Mayor FENTY. Yes. 

Mr. RUPPERSBERGER. Do you call it chief or commissioner in 

D.C.? 

Mayor FENTY. Chief. 


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Mr. RUPPERSBERGER. Mainly your police chief—and make sure 

she ties into the jurisdiction. The headquarters of this will be in 

Maryland with the Maryland State Police, and we want to make 

sure you are tied into our software package and whatever we need 

to do there. So those are two issues after the fact we will get with 

you on. 

Mayor FENTY. We will follow up both with you and the Chairman. Thank you. 

Mr. SERRANO. The Chair wishes to note I recognize Members alternating between Democrats and Republicans based on when that 

Democrat or Republican walked into the hearing, and I skipped 

over Mr. Goode, and I totally, totally apologize. And I recognize 

you, and instead of the 5 usual minutes, you can take 51⁄2. 

D.C. REPRESENTATION IN CONGRESS

Mr. GOODE. Thank you, Mr. Chairman. I won’t use that. 

Mr. Mayor, Mr. Gandhi and Mr. Gray, thank you for being here. 

I know Mr. Gray mentioned this, the issue of D.C. representation 

here on Capitol Hill. Do you want to see House and Senate representation for residents of the District of Columbia? Is this an accurate statement? 

Mayor FENTY. Yes, yes. 

Mr. GOODE. Have you thought about trying to incorporate with 

Maryland and return D.C. to—part of the District north of the Potomac to the State of Maryland and become part of Maryland so 

that you would have that representation? 

Mayor FENTY. I think there are a lot of different viewpoints on 

this issue, as you can imagine, Congressman. From my own informal poll, I think most residents feel that the District is so unique 

now that merging back, retrocession, is not the preferred option. 

There are some district residents who actually support it, though. 

The other thing, and I can’t speak for Maryland residents, but 

the other thing I have heard, and you can certainly speak to Congressman Ruppersberger or Governor O’Malley on this, is that 

Maryland residents don’t support that either. 

It seems that the option that has been pushed for over the last 

couple of decades is to give the District of Columbia full voting representation for the 600,000 residents. That is the preferred option. 

Mr. GOODE. Now, in the situation with the part of the District 

that used to be south of the Potomac. Arlington is just part of Virginia now. 

Mayor FENTY. Right. 

Mr. GOODE. Let me ask you this: What if Arlington said, hey, we 

want the whole full District back? 

Mayor FENTY. You know, sir, again, there are just no limits to 

the number of hypotheticals that you could come up with around 

voting representation. I think two things are true: That the District 

residents unanimously are not satisfied with where we are now, 

and the District residents also appreciate that we have some momentum on this issue. Just the virtue of the fact we raised the 

question and try to help come up with a solution, shows that momentum. And everyone from Senate Majority Leader Reid to our 

own Congresswoman here, and 57 Senators and the majority of the 

House believe that something should be done. 


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We started with a compromise that Congresswoman Norton and 

Congressman Davis came up with a bipartisan compromise last 

year, and hopefully we can push forward on that. I haven’t heard 

anybody from Virginia mention that, but that one probably would 

not have the support of District residents. I think working together 

we will come up with something very quickly, and I think the tides 

are turning in the District’s favor. 

Mr. GOODE. All right. Thank you, Mr. Chairman. 

Mr. SERRANO. Thank you. 

I don’t think that plan would work because then Maryland would 

have two baseball stadiums, and Virginia would have none. See, it 

all comes under baseball. That is what this is all about, you realize, 

right? It is that nice stadium. 

Ms. Wasserman Schultz. 

Ms. WASSERMAN SCHULTZ. Noting that the Florida Marlins are 

still in first, Mr. Chairman. 

Mr. SERRANO. Not for long. 

CAPITOL VISITOR CENTER

Ms. WASSERMAN SCHULTZ. Mayor Fenty, it is very good to meet 

you. I haven’t had a chance to meet you personally. 

I wanted to focus on the impending opening of the Capitol Visitor 

Center. We are working closely with the city on developing the 

Circulator bus route that will pick up tourists, visitors to the CVC, 

at Union Station, circle through some circuitous route, and keeping 

in mind the security needs that we have at the Capitol, and then 

eventually drop them off at hopefully someplace close so that the 

little legs of children, frail legs of senior citizens won’t have to walk 

extremely far. 

How is the coordination going with the Capitol Police and with 

the Architect of the Capitol on that process of developing that 

route? There is obviously going to be an increased demand for that 

Circulator bus route. Are you adding buses; are you addressing the 

demand? 

The other concern that I have is, there is a dollar charge for getting on that bus. And, you know, I chair the Legislative Branch 

Subcommittee, and our committee members are also somewhat concerned on both sides of the aisle about the additional cost of getting 

those folks transported to the CVC. 

Mayor FENTY. So let me address the first issue. I think the general point is the administration, the local administration, supports 

this 100 percent. I know that DDOT has been in discussions with 

the Architect of the Capitol, and I think they are discussing everything from additional buses to making sure that there is additional 

hours, and that we kind of focus in this particular Circulator route 

on the unique needs of our tourists. And so we will make sure that 

we will continue to do that. 

I think one of the things we are very cognizant of and paying attention to is how the Circulator has been marketed. It has really 

been a boon for the District since we established it. People like to 

know everything from the colors of the bus, to how well they are 

kept, the regularity that they run, to the very tight routes, as well 

as the price of the fares. So expect that to remain intact as we 


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bring the Circulator not only to the Capitol route, but we bring 

more Circulator routes throughout the District of Columbia. 

If you need anyone from the Department of Transportation to 

just give you an update or more specifics or time lines, we would 

be glad to get it. But from my understanding, the discussions with 

the Architect have been going very well. 

Ms. WASSERMAN SCHULTZ. If we could sit down with DDOT, that 

would be great, so I could get a more specific update. The concern 

that I have is I think the Circulator buses hold about 50 people, 

something like that, from what I understand; 40 maybe. 

Mayor FENTY. I think 50 seats, and then it can go as high as 70 

with standing. 

Ms. WASSERMAN SCHULTZ. Many of our groups have more people 

than that, and the buses circulate every 10 minutes. So if you are 

trying to get a group of 150 kids from the Union Station to the 

CVC, it will take 50 minutes for the whole group to gather, at 

least. 

When I was speaking to the Architect of the Capitol at our CVC 

oversight hearing, which we have every month, I didn’t really get 

a satisfactory answer as to how we were going to address that concern. Obviously we can’t have it take 50 minutes to have a school 

group to get to the CVC. 

Mayor FENTY. That is a good question. Let me reiterate to you 

how important the tourism industry is to the elected officials of the 

District of Columbia government. And to that extent we would find 

it in our interest to make sure, whether it is larger buses, whether 

it is two buses back to back, or something that—the transportation 

officials could probably come up with better ideas—whatever it is, 

to make sure that our Circulator route on the Capitol is tourist 

friendly, we will get it accomplished. We will both meet with the 

Architect and provide you and the Chairman with a briefing on a 

couple of different alternatives, and as is the case, hopefully, you 

can help us come to the right decision. 

Ms. WASSERMAN SCHULTZ. Thank you. 

D.C. AND CAPITOL POLICE COORDINATION

Two questions. I know that I have spoken to the Capitol Police 

about their perception of the coordination that goes on between the 

DC Police and the Capitol Police. What is your perception of how 

well the two agencies work together? 

Mayor FENTY. To be honest with you, I think it is nothing short 

of remarkable, given all of the threats. Every time I ask the Chief 

the number of threats and incidents that come in to the Nation’s 

Capital, it is more than any resident would ever imagine. Whether 

it is putting out of the bomb threats that have been right outside 

the Capitol, or just going after people who happen to be speeding 

around the Capitol campus, I think there is great coordination. It 

started under our predecessor Anthony Williams and the Ramsey 

administration. But our Chief Lanier was a special operations division commander, which is one of the reasons why I selected her, 

because she had a tremendous amount of training in homeland security, special operations and working with the Federal police authorities. 


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Ms. WASSERMAN SCHULTZ. Well, it is a tremendous source of 

pride for me as a woman that you have a female police chief, and 

I think it is to your credit that you made that selection because she 

seems to be doing an excellent job. 

BIKE SHARING PROGRAM

Mr. Chairman, with your indulgence I just want to ask about the 

bike-sharing program, because we are starting a bike-share program on the Capitol grounds and wondered if you had any advice 

for us as we move forward. We are trying to minimize costs, definitely had to cut back the ambition of some of the people who were 

spearheading this effort, but how do you assess—the real issue is 

how do you assess the potential need for the service, how much you 

would—— 

Mayor FENTY. To be honest with you, two things. One, we know 

the District residents. We know that people are both more concerned about being healthy, more concerned about their environment and want ways to demonstrate both. 

Two, as anyone who has just traveled to any major city in Europe knows, bicycles are a lot bigger part of the daily activity there. 

In fact, there are some European cities that have garages for bicycles. We want to keep pushing in that direction. 

The thing I will stress is that putting dollars forward to it is 

worth it. I think it increases the quality of life. More people want 

to live here when there are more bike routes and bicycles available. 

I think the private sector will pony up to it. I don’t know how 

the private-public partnerships work on the Hill, but we have been 

able to use them in our bike-sharing program, and we would be 

glad to share that with you. 

Ms. WASSERMAN SCHULTZ. While we are meeting on the CVC, if 

we could add on the bike-share program, that would be great. 

Thank you very much. 

Mayor FENTY. Thank you. 

Mr. SERRANO. I will put the rest of the questions in the record. 

FISCAL SITUATION

Mr. SERRANO. I would like to move on now to discussion of the 

city’s financial security and soundness. There have been a few troubling articles recently that I would like you to comment on, Dr. 

Gandhi. First, it has been reported the city entered into a situation 

with bonds that have now being portrayed as a risky way to finance projects. Is it true that, as reported, the city now has to 

repay more than a million dollars a month more than expected? 

Will this amount increase, and does this concern you? 

Mr. GANDHI. Sir, I think that article that had appeared in the 

newspapers really misses the whole mark. The program that we 

with, the so-called auction rate securities whereby we borrow short 

term, had been a very successful program. In year 2008 alone, we 

would save $10 million using that program. In the last few years, 

I would say since 2006, we would save $100 million in interest 

costs by using that particular program. 

What happens here is that we have to look at the mix of our borrowing. Of about $41⁄2 billion borrowing, these so-called auction 

rate securities that the article referred to is about 10, 11 percent. 


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And I think it is a most appropriate mix to have since it saves us 

a lot of money. And that situation is entirely under control. And 

by the end of this next month, we will have provided to secure 

those securities with enough funding and enough provision that I 

would say the city is for more better off than if we had not taken 

on those auction rate securities. 

Mr. SERRANO. So the last part of my question was, did this concern you that this would create a problem? 

Mr. GANDHI. No, sir, not at all. There are $200 billion securities 

out like that. Hundreds of municipalities use that. And we used it 

most judiciously. 

Mr. SERRANO. I have to tell you, the committee members are outraged that you would think a reporter didn’t get the story right. 

Oh, boy, am I in trouble. 

FINANCIAL AUDIT

My next question is regarding the recent audit which found three 

material weaknesses—and that is the quote—in the city’s handling 

of its finances. Could you discuss what is being done to correct 

these problems? And is there reason to be concerned that these 

issues, coupled with a downturn in the housing market, could 

threaten the economic strength of the city? 

Mr. GANDHI. The material weakness issue is troubling, and we 

are very much concerned about that. One had related to the school 

system, and we had experienced that material weakness last year. 

We had not had enough time to work on it; however, I am quite 

confident as we proceed through the 2008 audit that we would remove those material weaknesses substantially. 

And I guarantee you, Mr. Chairman, Mr. Regula and members 

of the committee, the city’s financial situation is not at all threatened by any of these since we have received a clean audit—this 

would be the 11th consecutive balanced budget with clean audit 

with substantial reserves. And we have had A-plus bond rating 

with a stable outlook from all three rating agencies simultaneously. 

That has never happened before. So I am quite confident about the 

city’s finances under the leadership of the Mayor and the council. 

CRIME

Mr. SERRANO. One last question. Could you comment on your 

plans to combat crime in the District? In recent weeks there were 

a number of murders in one Northeast D.C. neighborhood. As well, 

The Washington Post ran a story about the large increase in home 

burglaries in the city. Whether the economic downturn is to blame 

for the increase or not, could you comment on what your plan is 

to do to confront this increase in crime? 

By the way, I should have prefaced that by saying I don’t want 

to sound like a contradiction. On one hand I want to take myself 

out of business in having anything to do with telling the city how 

to behave. That day hasn’t come yet. On the floor we get a lot of 

questions about what is happening in D.C., both from Members 

who live here in the District and others who have general well-intentioned concern. So these questions are not part of a continuation 

of a behavior of the past, but rather to be able to answer questions 

as they come to us. 


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Mayor FENTY. We find it much more than appropriate. We actually appreciate the question. 

What the Chief has done—it is important to start out by saying 

if you look at the crime map, it actually looks the opposite of Dr. 

Gandhi’s chart. It has steadily gone down. Whether you measure 

it in homicides, burglaries, robberies or any other type of violent 

crime probably going back 25 years, it just continues to go down. 

There are upticks from time to time. And what we found is the uptick like the one you described in the fifth district, they are happening less and less. They are happening longer intervals. 

Mr. FENTY. So our job is to try and extend that interval and reduce the uptick by as much as possible. The Chief is doing a number of different things, one, putting more police officers on the 

street, everywhere from New York, Chicago, Philadelphia, that is 

obviously the key. She is taking people out of desk jobs. I just went 

to an academy graduation where 40 new officers are hitting the 

streets. We are going to get up to a sworn officer count of 4,200 

by the end of the fiscal year, the budget that you will be approving, 

and we have got money in there to do so. 

The second thing that she is doing is really trying to make sure 

that we solve some of these tragic crimes quicker. Just take the 

homicide rate for example. The homicide closure rate for this year 

is 64 percent, which is almost double where it was last year. And 

last year was one of the highest levels that it had ever been. That 

shows great work on the part of our detectives, bringing people off 

the streets who could then do a subsequent crime. 

The other thing that we are obviously trying to do is to make 

sure that we beat crime to the punch. We learned this from other 

jurisdictions. Tactical units are trying to get in front of the crime 

as much as possible and prevent it from spiking. We have had 

some excellent arrests since that spike hit in the Fifth District, 

many of which were announced over the last 48 hours. 

So a lot of things along that nature. We pulled 312 guns off the 

street in the District of Columbia this year. That is about 100 more 

than we pulled off the streets at this time last year, which shows 

great work for the police department, but a lot of work to do and 

just reducing guns in big cities in this country. 

Mr. SERRANO. Chairman Gray. 

Mr. GRAY. Yes, thank you very much, Mr. Chairman. 

I want to underscore a point that the Mayor made, and that is 

the Council made the decision about a year ago to invest additional 

resources in being able to bring onboard more police officers. We 

made the commitment for up to another 400 police officers which, 

as the Mayor indicated, would bring us to the full strength of 

4,200. And it is exciting to know that we will be able to reach that 

just in a matter of months. 

And we recognize, too, that it isn’t just a question of law enforcement. Congressman Ruppersberger talked about gangs earlier. The 

Council recently authorized more than $1 million to look at the 

gang problem in the District of Columbia. And we are actually 

studying it from the very perspective that he talked about. And 

that is, gangs as a substitute for families. In fact, the work is being 

done by our network of family strengthening collaboratives in the 

District of Columbia. And we expect to have some results from that 


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by the end of this fiscal year and to move to work with the Mayor 

to try to implement some of the findings of that. 

We also have before us a piece of legislation that we expect to 

fund during this budget period. And that is the motor vehicle theft 

prevention program which has been successful in 12 other states. 

It would allow us to have an intensified focus on motor vehicle 

theft in the District of Columbia. And we know that those issues 

can lead to so many other crimes as well, especially as our kids, 

you know, who steal cars and engage in other kinds of crimes as 

a result of that get younger and younger. 

Mr. SERRANO. Thank you to both of you for that answer. This is 

incredible. While we are sitting here, Mr. Regula got an e-mail 

from Senator McCain, and I got one from Senator Obama and Mrs. 

Clinton. They just want to know, is the city ready for their inauguration? Are we ready for them? 

Mayor FENTY. Yes, yes, Mr. Chairman. 

Mr. SERRANO. It is going to be a big party. We are looking forward to it. That concludes our round of questioning. 

Committee rules do not provide for noncommittee members to 

participate. However, we are honored to have Ms. Holmes Norton 

with us. And I ask unanimous consent, which I got from Mr. Regula, to have her address the committee on the hearing. And that 

is what I want to do because it is the proper thing. Besides, she 

is the one that got me on the field at Nationals Stadium during 

that first game. And I have got to be grateful, if you know what 

I mean. You were too busy taking pictures with the players. You 

know, we just went through the same thing in the Bronx, the history of that stadium. Half the folks thought it was a great idea and 

half thought it was a terrible idea. I am two blocks from that stadium. I bet you, 5 years from now, they will think that we were 

geniuses for building a new Yankees Stadium. I suspect the same 

thing is going to happen in D.C. because it looks good and it is part 

of a larger plan. 

Mayor FENTY. That is right. 

Mr. SERRANO. A larger plan. 

Ms. Holmes Norton. 

Ms. NORTON. Thank you very much, Mr. Chairman. And all I 

was doing was taking care of the Chairman. I haven’t been here 

for 17 years for nothing. I do want to say how much I appreciate 

your courtesy, Mr. Chairman, in allowing me to sit with you. I appreciate, having lived in New York, having met you first in New 

York, that the highest compliment you could give me is for you to 

call me a nudge. 

Mr. SERRANO. Nudge. 

Ms. NORTON. Yes. You see, if you are a New Yorker, you know 

how to truly pronounce it. But the Chairman and I also know some 

words in Yiddish that neither of us would like to be called. So I 

accept nudge. 

I want to thank Mr. Regula while I am sitting here as well because most of the time I was in Congress, I was dealing with Mr. 

Regula. First, I want to say that Mr. Regula, before I came to Congress, long before I came to Congress, was regularly putting in his 

own voting rights bill. It is a very reasonable bill. It is a logical bill. 

It is not the first choice of the District of Columbia. But it had 


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nothing to do with nudging from me or from residents. It had to 

do with his sense that you don’t have people paying taxes, going 

to war. And I just want to thank him again for that. 

When we had our—when we had our hearings, I specifically 

asked that Mr. Regula’s bill also be included in the hearings, when 

we were having hearings on this bill. I want to thank you also, Mr. 

Regula, because it was when I was in the minority that we got the 

agreement that has since been honored by this Chairman that the 

District budget would always come out on September 30. This is an 

extraordinarily important action for us not to have to wait months 

and months because sometimes the Congress cannot always get its 

own work done in time. 

Mr. Chairman, I do want to say for myself how much I appreciate your invaluable leadership on the entire budget process. I 

want to note that what you have done on needle exchange and on 

voting rights, allowing us to spend our own money is hard—it is 

hard to indicate what that has meant to the city or to me personally. The Mayor was quick to fund a comprehensive needle exchange. So a needle exchange is a very small part of what, in fact, 

he has put the city money with the support of the City Council to 

doing. It means everything to the residents of the District of Columbia. And I think you will see the AIDS rate go down the way 

it went down sharply in New York, for example, when you did needle exchange, which you, too, did it the right way. You were in office a few months before you had moved each of these two priorities, matters forward to us, and we deeply appreciate it. 

I do want to congratulate the Mayor, Mayor Fenty, and City 

Council Chairman Gray. This is a new Mayor and a new City 

Council Chairman so they both had to start off learning from each 

other and working with each other. To be sure, the mayor found 

a city in working order, thanks to the prior mayor, but he has 

taken that working order and in many ways improved it. You have 

asked him about the schools which for him has become a signature 

issue. And I think for the city it is that kind of issue. He could not 

have done it without a council chair who had, in some ways, a 

much harder job because he has got 13 independent people whom 

he has to convince for everything. And he has done the most extraordinary job in bringing people together. I think we are very fortunate to have both of these elected officials. 

I did want you to know, Mr. Chairman, Ms. Wasserman Schultz 

raised the question of the Visitor Center. And we are—my subcommittee is the authorizing committee. This is something that is 

going to be a great concern to all Members because when the Visitor Center opens and we have had a hearing on it as well as on 

the infrastructure of the Capitol, we are going to have more people 

come in. They are going to be your people, if I may say so, Mr. 

Chairman, and Mr. Regula. And it is truly—the city has a new 

issue, making sure that these people get here and get here quickly. 

But I agree with Ms. Wasserman Schultz; you cannot possibly drag 

people up to Union Station and say, give me a buck, and then we 

will let you go to the Visitor Center. You and I are going to be 

blamed for that, for charging people to be sent to the Capitol. 

Interestingly—and this is a happy coincidence—I was so concerned about the plan that I asked everyone to come to see me, the 


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Capitol Police, all concerned. And at 4:00 today, Mr. Chairman, 

there is a meeting on this matter. One solution seems to me is already in place, and I have asked them to consider that solution. I 

am always ready to hear why it doesn’t work. We have the buses 

come to the Botanic Gardens, leave off all of your constituents, and 

then, without all of the air pollution, we use golf carts for people 

who need them. The others walk up. And everybody seems to be 

happy. 

So the whole notion of saying to everybody, we are not going to 

take you to the Capitol, we are going to take you to Union Station. 

Then we are going to put you on another bus; you will love it, and 

we want a dollar from you. Tourist unfriendly. 

I don’t know what would make anybody want to do it that way. 

But I think you ought to want us to stop it before you get a whole 

bunch of Members coming at you from every end once that dollar 

has to be put over by school children, by people who barely made 

it to D.C. But we are trying to deal with this in the way we deal 

with everything involving the Capitol, cooperatively with the city. 

I do want to say for the record since it was raised, Mr. Chairman, that the two public officials sitting before you urged me to oppose private school vouchers, and I did so. The majority of District 

residents did. It was a pilot program. It ended as of this year. 

There may need to be some more funding in order to allow the children to be properly placed. The program funded a study. And after 

1 year, they were supposed to report back whether there was any 

difference in the performance of children in the public schools and 

in the other schools. 

And the report, if I may read it, just to put it on the record, the 

report found—and here is what it found: There was no significant 

impact off the program on reading or math achievement. 

And the whole purpose was to see whether or not if you took a 

controlled group and compared them, there would be significant 

differences. 

Mr. Chairman, there are long waiting lists of children who want 

to get into the D.C. charter schools. These are public schools accountable to the people of the District of Columbia. I had met with 

the voucher parents. They have said to me that one of the reasons 

that they were enthusiastic about vouchers is they could not get 

into charter schools. My own view is that the preferred local school 

district, the residents prefer, and we have become a model for the 

Nation of charter schools. That is where, it seems to me, at least 

after this year, the money should go. I want to quote you a poll 

that shows that 76 percent opposed giving taxpayer-funded vouchers to parents to pay for their children to attend private schools. 

Finally, and I raised that only because it was put on the record 

and it needed to have on the record, it seems to me, the information that I had. And I want you to know, Mr. Chairman, the authorizing committee has not and has indicated it will not reauthorize this program, that we have done what we said we would do for 

5 years. We do not intend to leave these children out here, and so 

some funding may be necessary. 

I want to congratulate the city. The bond rating, Mr. Chairman, 

is among the things that are most important to look at. They have 

a projected decline of $62.5 million each fiscal year. To his credit, 


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Mr. Gandhi usually comes up with a very conservative projection. 

And it might not be that steep, but I congratulate you for warning 

us that it could be that steep. And I want you to know that part 

of your money comes from commercial real estate. We have had a 

decline. And what you are able to get in revenue from residential 

real estate, I note in your testimony, Mr. Mayor, that for commercial office space, there was an increase of 4.4 percent. And the 

amount of commercial office space and the vacancy rate declined 

from 6.2 percent to 5.8 percent, meaning that that is a robust—still 

a robust part of your economy. I am chair of the subcommittee that 

has to do with Federal leasing and construction. 

Mr. Chairman, you also have seen St. Elizabeth’s, and we hope 

to get those funds out. 

Thank you very much for indulging me. 

Mr. SERRANO. Thank you. Mr. Regula. 

Mr. REGULA. Thank you, Mr. Chairman. 

I congratulate you, Mr. Mayor, on what you are doing in the education system. And I want to say, even though I am leaving here, 

I am going to follow your success. 

Mayor FENTY. Thank you. 

Mr. REGULA. Because it is the most important thing for this city 

to do what you are doing and to give these young people opportunities that they might not otherwise have. 

And secondly, I want to congratulate you, Mr. Chairman. This is 

your maiden voyage as a Chairman of this committee. You have 

done a superb job. I have been on a lot of subcommittees over 36 

years, and you do it very well. And it has been a pleasure to work 

with you. And as I said earlier, we have been extremely collegial 

in trying to address the challenges. But none is greater than the 

one you have as leader of this city, and I think you are doing a 

great job on with that responsibility, too. And thank you, Mr. 

Chairman. 

Mr. SERRANO. Thank you. And let me conclude this hearing with 

two final comments. 

One, I want to reiterate the deep appreciation and respect that 

this committee and this Congress has for you, Mr. Regula. Thirtysix years is a long, long time to be in Congress, to be anywhere, 

doing this kind of work. And the service, you know, the press always talks about problems in Congress. They never talk about this 

kind of service and this kind of dedication. All of you who are out 

there know what dedication is, otherwise you wouldn’t be here 

today. So we thank you for your special respect for your colleagues 

and your special respect for the District of Columbia. 

I can only reiterate once again how difficult it was for me when 

I found out, as a person that was born in a territory of the United 

States, I was going to oversee a committee that oversaw District 

of Columbia. And so I don’t know what others may feel, but I will 

continue to try to get rid of the job that I have so that you have 

more and more home rule, and I will have less and less to say 

about D.C. 

And with that in mind, we stay committed to helping you. There 

are two places we live in: We live in our districts, and we live in 

this region, this area. So whatever happens here is to our benefit 


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and to our pride and joy. All I can tell you is, next year you should 

come in behind me in the race. It would help your budget request. 

But other than that, Mr. Mayor, Mr. Chairman, Dr. Gandhi, we 

are so proud to be involved with you. And we thank you. 

Mr. REGULA. And I thank you, Mr. Chairman, for teaching me 

all about baseball. 

Mr. SERRANO. Hey. You know, we have exported three things to 

Latin America: Democracy, capitalism, baseball. One of the three 

has been a huge success. 


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W I T N E S S E S 

Page 

Duff, J.C ................................................................................................................... 1 

Fenty, A.M ................................................................................................................ 133 

Gandhi, N.M ............................................................................................................. 133 

Gibbons, J.S ............................................................................................................. 1 

Gray, V.C .................................................................................................................. 133

Kennedy, A.M ........................................................................................................... 101 

Thomas, Clarence .................................................................................................... 101 


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I N D E X 

The Federal Judiciary 

March 12, 2008 

Page 

Chairman Serrano’s Opening Statement ............................................................... 1 

Mr. Regula’s Opening Statement ........................................................................... 2 

Judge Gibbons’ Testimony ...................................................................................... 2 

Statement of Paul R. Michel, Chief Judge, U.S. Court of Appeals ...................... 23 

Statement of United States Sentencing Commission ........................................... 27 

Statement of Jane A. Restani, Chief Judge, U.S. Court of International Trade 33 

Statement of Hon. Barbara J. Rothstein, Director, Federal Judicial Center ..... 36 

Director Duff’s Testimony ....................................................................................... 39 

Retroactivity of Crack Cocaine Sentencing Amendment ...................................... 52 

Cost Containment .................................................................................................... 53 

Panel Attorney Rates .............................................................................................. 54 

Judges Leaving the Federal Bench ........................................................................ 55 

Workload of Judges ................................................................................................. 57 

Federal Protective Service ...................................................................................... 57 

Construction of New Courthouse in Los Angeles .................................................. 58 

Questions for the Record: 

Chairman Jose ́ E. Serrano ............................................................................... 61 

Ranking Member Regula ................................................................................. 86 

United States Supreme Court 

March 13, 2008 

Page 

Chairman Serrano’s Opening Statement ............................................................... 101 

Mr. Regula’s Opening Statement ........................................................................... 102 

Justice Kennedy’s Testimony .................................................................................. 102 

Statement of Stephen T. Ayers, Acting Architect of the Capitol ......................... 109 

Justice Thomas’ Testimony ..................................................................................... 113 

Building Modernization ........................................................................................... 113 

Judicial Salaries and Ethics ................................................................................... 114 

Teaching the Role of the Judiciary ......................................................................... 116 

Politicization of the Judiciary ................................................................................. 117 

Supreme Court Workload ........................................................................................ 119 

Judicial Pay .............................................................................................................. 120 

Moment of Silence for the Troops ........................................................................... 122 

Electronic Courtrooms ............................................................................................. 122 

Cameras in the Courtroom ..................................................................................... 123 

Minority Hiring ........................................................................................................ 125 

Releasing Audio Tapes and Other Information ..................................................... 127 

Court Security .......................................................................................................... 128 


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iv 

Supreme Court Visitors ........................................................................................... 128 

Supreme Court Jurisprudence ................................................................................ 129 

International Judicial Visits ................................................................................... 130 

District of Columbia 

April 30, 2008 

Page 

Chairman Serrano’s Opening Statement ............................................................... 133 

Mr. Regula’s Opening Statement ........................................................................... 134 

Mayor Fenty’s Testimony ........................................................................................ 135 

Chairman Gray’s Testimony ................................................................................... 142 

Dr. Gandhi’s Testimony .......................................................................................... 155 

Quarters Program .................................................................................................... 181 

D.C. Public School Reform ...................................................................................... 181 

HIV/AIDS Prevention Programs ............................................................................. 182 

School Dropout Prevention ..................................................................................... 194 

Three-Sector Education Funding ............................................................................ 194 

D.C. Statehood ......................................................................................................... 195 

Cap on Attorney Fees for Special Education Cases .............................................. 196 

Federal Funding of D.C ........................................................................................... 196 

Federal Funding for D.C. Education ...................................................................... 197 

Court-Appointed Special Advocate Program ......................................................... 198 

National Children’s Alliance ................................................................................... 198 

Washington Metropolitan Area Traffic .................................................................. 200 

Gang Task Force ...................................................................................................... 201 

D.C. Representation in Congress ............................................................................ 202 

Capitol Visitor Center ............................................................................................. 203 

D.C. and Capitol Police Coordination .................................................................... 204 

Bike Sharing Program ............................................................................................. 205 

Fiscal Situation ........................................................................................................ 205 

Financial Audit ........................................................................................................ 206 

Crime ........................................................................................................................ 206 

Questions for the Record: 

Chairman Jose ́ E. Serrano ............................................................................... 213 

Ranking Member Regula ................................................................................. 215 

Æ 


jbell on PROD1PC69 with HEARING