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	<title> - JUDICIAL TRANSPARENCY AND ETHICS</title>
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	[House Hearing, 115 Congress]
	[From the U.S. Government Publishing Office]


	JUDICIAL TRANSPARENCY AND ETHICS

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

	HEARING

	BEFORE THE

	SUBCOMMITTEE ON
	COURTS, INTELLECTUAL PROPERTY,
	AND THE INTERNET

	OF THE

	COMMITTEE ON THE JUDICIARY
	HOUSE OF REPRESENTATIVES

	ONE HUNDRED FIFTEENTH CONGRESS

	FIRST SESSION

	__________

	FEBRUARY 14, 2017

	__________

	Serial No. 115-1

	__________

	Printed for the use of the Committee on the Judiciary



	[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]


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


	___________


	U.S. GOVERNMENT PUBLISHING OFFICE
	24-270 PDF WASHINGTON : 2017
	________________________________________________________________
	For sale by the Superintendent of Documents, U.S. Government Publishing Office,
	http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center,
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	COMMITTEE ON THE JUDICIARY

	BOB GOODLATTE, Virginia, Chairman
	F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan,
	Wisconsin Ranking Member
	LAMAR S. SMITH, Texas JERROLD NADLER, New York
	STEVE CHABOT, Ohio ZOE LOFGREN, California
	DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
	STEVE KING, Iowa STEVE COHEN, Tennessee
	TRENT FRANKS, Arizona HENRY C. ``HANK'' JOHNSON, Jr.,
	LOUIE GOHMERT, Texas Georgia
	JIM JORDAN, Ohio TED DEUTCH, Florida
	TED POE, Texas LUIS V. GUTIERREZ, Illinois
	JASON CHAFFETZ, Utah KAREN BASS, California
	TOM MARINO, Pennsylvania CEDRIC RICHMOND, Louisiana
	TREY GOWDY, South Carolina HAKEEM JEFFRIES, New York
	RAUL LABRADOR, Idaho DAVID N. CICILLINE, Rhode Island
	BLAKE FARENTHOLD, Texas ERIC SWALWELL, California
	DOUG COLLINS, Georgia TED LIEU, California
	RON DeSANTIS, Florida JAMIE RASKIN, Maryland
	KEN BUCK, Colorado PRAMILA JAYAPAL, Washington
	JOHN RATCLIFFE, Texas BRADLEY SCHNEIDER, Illinois
	MIKE BISHOP, Michigan
	MARTHA ROBY, Alabama
	MATT GAETZ, Florida
	MIKE JOHNSON, Louisiana
	ANDY BIGGS, Arizona

	Shelley Husband, Chief of Staff & General Counsel
	Perry Apelbaum, Minority Staff Director & Chief Counsel
	------

	Subcommittee on Courts, Intellectual Property, and the Internet

	DARRELL E. ISSA, California, Chairman

	DOUG COLLINS, Georgia, Vice-Chairman

	LAMAR S. SMITH, Texas JERROLD NADLER, New York
	STEVE CHABOT, Ohio HENRY C. ``HANK'' JOHNSON, Jr.,
	TRENT FRANKS, Arizona Georgia
	JIM JORDAN, Ohio TED DEUTCH, Florida
	TED POE, Texas KAREN BASS, California
	JASON CHAFFETZ, Utah CEDRIC RICHMOND, Louisiana
	TOM MARINO, Pennsylvania HAKEEM JEFFRIES, New York
	RAUL LABRADOR, Idaho ERIC SWALWELL, California
	BLAKE FARENTHOLD, Texas TED LIEU, California
	RON DeSANTIS, Florida BRADLEY SCHNEIDER, Illinois
	MATT GAETZ, Florida ZOE LOFGREN, California
	ANDY BIGGS, Arizona STEVE COHEN, Tennessee
	LUIS V. GUTIERREZ, Illinois

	Joe Keeley, Chief Counsel

	Jason Everett, Minority Counsel


	C O N T E N T S

	----------

	FEBRUARY 14, 2017

	Page

	OPENING STATEMENTS

	The Honorable Darrell E. Issa, a Representative in Congress from
	the State of California, and Chairman, Subcommittee on Courts,
	Intellectual Property, and the Internet........................ 1
	The Honorable Jerrold Nadler, a Representative in Congress from
	the State of New York, and Ranking Member, Subcommittee on
	Courts, Intellectual Property, and the Internet................ 2
	The Honorable Bob Goodlatte, a Representative in Congress from
	the State of Virginia, and Chairman, Committee on the Judiciary 4
	The Honorable John Conyers, Jr., a Representative in Congress
	from the State of Michigan, and Ranking Member, Committee on
	the Judiciary.................................................. 5

	WITNESSES

	Mickey H. Osterreicher, Esq., General Counsel, National Press
	Photographers Association (NPPA)
	Oral Testimony................................................. 7
	Prepared Statement............................................. 10
	Thomas R. Bruce, Professor, and Director, Legal Information
	Institute, Cornell University
	Oral Testimony................................................. 21
	Prepared Statement............................................. 23
	Charles G. Geyh, John F. Kimerling Professor of Law, Indiana Law
	School
	Oral Testimony................................................. 31
	Prepared Statement............................................. 33

	LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

	Material submitted by the Honorable Jerrold Nadler, a
	Representative in Congress from the State of New York, and
	Ranking Member, Subcommittee on Courts, Intellectual Property,
	and the Internet..........................................47<greek-l>
	deg.OFFICIAL HEARING RECORD
	Material Submitted for the Hearing Record but not Reprinted

	Material submitted by the Honorable Darrell E. Issa, a Representative
	in Congress from the State of California, and Chairman,
	Subcommittee on Courts, Intellectual Property, and the Internet.
	This submission is available at the Subcommittee and can also be
	accessed at:

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


	JUDICIAL TRANSPARENCY AND ETHICS

	----------


	TUESDAY, FEBRUARY 14, 2017

	House of Representatives

	Subcommittee on Courts, Intellectual Property,
	and the Internet

	Committee on the Judiciary

	Washington, DC.

	The Subcommittee met, pursuant to call, at 10:06 a.m., in
	room 2141, Rayburn House Office Building, the Honorable Darrell
	E. Issa (Chairman of the Subcommittee) presiding.
	Present: Representatives Issa, Goodlatte, Chabot, Jordan,
	Poe, Marino, Labrador, DeSantis, Gaetz, Biggs, Nadler, Conyers,
	Deutch, Bass, Jeffries, Swalwell, Lieu, Lofgren, Johnson, and
	Jackson Lee.
	Staff Present: (Majority) Joe Keeley, Chief Counsel; Zack
	Walz, Clerk; and (Minority) Jason Everett, Minority Counsel.
	Mr. Issa. The Subcommittee on Courts, Intellectual
	Property, and the Internet will come to order with or without a
	gavel.
	Without objection, the Chair is authorized to declare a
	recess of the Committee at any time.
	We welcome everyone here today for a hearing on judicial
	transparency and ethics. And I now recognize myself for a quick
	opening statement.
	As we all know, there are three branches of government. The
	first branch has a key responsibility to make laws. Those laws,
	consistent with the Constitution, include the oversight of the
	other two branches. No one doubts for one moment that Congress
	has a responsibility to oversee Article II, the executive
	branch.
	Oddly enough, the courts have given us explicit rulings to
	just that, the need for oversight, particularly the need to
	oversight of our appropriation, moneys of the taxpayers. And
	yet in many, many ways, the court, not just the Supreme Court,
	but all of the courts, tend to be fairly insular and seem to
	believe that they and they alone will determine what they and
	they alone shall do. Up to a point, this Member would agree
	with them. Agree that, in fact, its interference by the
	executive branch or by Congress in their deliberative process
	in how they go about determining what is justice, is in fact,
	an area that we need not and should not tread upon lightly.
	However, when it comes to the taxation of the American
	people, which includes fees; when it comes to transparency,
	meaning American citizens and others' right to know; when it
	comes to the ethics of the judiciary, we have an obligation. We
	cannot alone simply say we will wait to impeach a judge from
	time to time about once every couple of decades. The real
	question of whether or not judges are operating appropriately
	in their courtroom, not just ethically but, in fact, since it
	is a lifetime appointment, often we recognize that judges grow
	old, judges have personal lives, and in fact, overseeing
	whether or not that system is properly maintained to ensure
	that every judge is doing and capable of doing their job when
	they take the bench.
	Additionally, today, we will talk about PACER. Most
	Americans do not know what PACER is, but by the end of this
	hearing, they will understand that everything that goes on in a
	courtroom and then beyond, all the way through the appellate
	process, is made available to the public through PACER, but not
	necessarily for free. We all know that fees are paid when you
	are prosecuting a case and judgments include court cost. What
	most people don't know is that the court charges 10 cents an
	electronic page for their records and makes a tidy profit on
	it, which they use in any way they see fit and, in fact,
	circumvent appropriations.
	That is not to say that everything they spend the money on
	is inappropriate or that this fund's use to ensure that we
	expand the ability to keep up with records is in fact
	inappropriate, but it does beg the question of, should the
	American people in this day and age receive more information
	more quickly and less expensively or should we allow the court
	to set an amount in a vacuum that allows them to use it for
	areas that are often well outside of their essential needs.
	As I mentioned earlier, judges grow old, Alzheimer's is
	real, aphasia is real, and there is no system that guarantees
	that a judge in his or her everyday life is, in fact, being
	properly checked to ensure that they are able to do their job,
	one of the most important jobs in a democracy.
	Today, we will hear about cameras in the courtroom. There
	will be people on the dais for it and there will be people
	against it. I will, for one, remain open minded, recognizing
	that the Chief Justice is adamantly opposed to it but that, in
	fact, there is a question of whether or not it is his right to
	preclude that or it is our obligation to protect the Court from
	becoming much like the House floor. And in each side of that
	argument, there will be those who speak.
	I think it is important today that we realize that this is
	the first of many hearings that will be held on the courts. And
	during this 2 years, I am dedicated, in addition to the
	questions of the internet and questions of intellectual
	property, to reassert this Committee's responsibility to
	oversee the courts, to help them do their job better, to be a
	conduit for what they want and, in fact, an oversight of what
	they do.
	And with that, I would like to recognize the Ranking Member
	of the Subcommittee, the gentleman from New York, Mr. Nadler,
	for his opening statement.
	Mr. Nadler. Thank you, Mr. Chairman.
	Mr. Chairman, the Federal judiciary is the envy of the
	world. Dedicated to upholding the rule of law, our court system
	provides a forum for private parties to resolve their disputes
	peacefully and enable society to punish those who violate the
	law. It also safeguards our treasured liberties and ensures
	that the government stays within constitutional boundaries.
	Unfortunately, however, we cannot ignore the fact that the
	judiciary is under a sustained attack right now, and it is
	coming from what should be one of the most unlikely of places,
	the Oval Office. That's right, the President of the United
	States, whose unconstitutional Muslim ban has been rightly
	thwarted by the courts, has launched an unprecedented and
	dangerous campaign to threaten and attempt to delegitimize the
	judiciary and any judge who would dare enforce limits on his
	power.
	It is not uncommon for Presidents of both parties to speak
	out against court decisions with which they disagree, but never
	before have we seen such a brazen attempt by a President to
	erode public confidence in the courts as fair and neutral
	arbiters of the law. As most people are aware, after Judge
	James Robart temporarily blocked enforcement of President
	Trump's immigration executive order, the President took to
	Twitter to label him a ``so-called judge.'' This was followed
	by several other tweets that attacked Judge Robart personally,
	called his decision political, and even claimed that if
	something happened to the United States, the judge and the
	court system should be blamed.
	Next, the President turned his target to the Ninth Circuit
	judges considering the appeal of Judge Robart's order. In his
	speech the morning after the court's hearing but even before
	its ruling, Mr. Trump called the proceedings ``disgraceful,''
	and ``so political,'' while also claiming that the judges
	failed to grasp concepts that even ``a bad high school student
	would understand.''
	Then after the Ninth Circuit left Judge Robart's order in
	place, one of President Trump's top advisers, Stephen Miller
	said, ``The judiciary is not supreme,'' and challenged the
	court's legitimacy to question the President's interpretation
	of the law.
	Finally, the President summed up his thoughts on Twitter
	this weekend writing ``our legal system is broken.'' I beg to
	differ. I think our court system worked exactly as it is
	supposed to. As chaos and confusion reigned at our Nation's
	airports, the court stepped in to clarify that no one is above
	the law and that the Constitution still provides certain
	fundamental protections.
	Although the drama surrounding President Trump's executive
	order has been temporarily set aside, we must not become
	complacent in the face of such attacks on the integrity and
	legitimacy of individual judges or the court system generally.
	Especially when they come from the President of the United
	States, such attacks are both inappropriate and reckless and
	dangerous.
	Already there have been reports that judges involved in
	legal challenges to the executive order have been threatened
	and requiring increased security protection. Moreover,
	President Trump's broadsides against the Federal courts
	threaten to undermine public confidence in the institution of
	the judiciary itself.
	An independent judiciary is fundamental to the checks and
	balances that are embodied in the separation of powers and is
	essential to maintaining liberty and the rule of law. I am
	disturbed that the President either does not appreciate the
	role that an independent judiciary plays in our constitutional
	system or it does appreciate it and seeks to undermine it. I
	hope that my Republican colleagues, especially on this
	Committee, will join me in demanding that the President cease
	these attacks on the judiciary immediately.
	My deep respect for the judiciary does not mean, of course,
	that there are no improvements that we can make to the court
	system, particularly when it comes to transparency. This
	includes stronger ethics and disclosure requirements,
	particularly with respect to the Supreme Court, which is not
	bound by the code of ethics that applies to other Federal
	judges.
	Another important transparency measure would be televising
	judicial proceedings, at least in the appellate courts. I know
	that the judicial conference has undertaken a pilot project to
	bring cameras to the courtroom, but I think it is time to
	expand this across the Federal appellate courts. I recognize
	there are privacy concerns when it comes to trial court
	proceedings, but there is no reason to shield the appellate
	courts from public view. Public scrutiny of governmental
	proceedings and an informed citizenry is essential to
	democracy.
	Most courts are closed to cameras, effectively putting them
	off limits to the public at large. Transcripts and audio
	recordings, some of which are made public days or in some
	weeks, even weeks later, are poor substitutes for the immediate
	visual experience. That is why yesterday I reintroduced the
	bipartisan Eyes on the Courts Act. This legislation would
	finally bring important cases into public view by requiring
	that cameras be allowed in all Supreme Court and Federal
	appellate court proceedings.
	I do not share the concerns of those who believe that the
	highly trained lawyers and judges in appellate court
	proceedings tackling some of the most important issues facing
	our country will start playing to the cameras, nor am I aware
	of any such problems occurring in those Federal courts where
	cameras have been used.
	The Nation was riveted by the live audio stream of the
	Ninth Circuit's consideration of the President's executive
	order last week. Clearly, there is great interest in wider
	access to court proceedings, and I see no reason the public
	should be prevented from witnessing the other important cases
	considered in the Federal appellate courts.
	I respect the difficulty and important job that the Federal
	judiciary performs. If my bill becomes law, the public will
	have an opportunity to watch them in action and to gain a
	greater understanding and appreciation of their critical work.
	I look forward to hearing from our witnesses on this issue
	and the other important topics affecting the Federal judiciary.
	And I yield back the balance of my time.
	Mr. Issa. I thank the gentleman.
	We now recognize the Chairman of the full Committee, the
	gentleman from Virginia, Mr. Goodlatte, for his opening
	statement.
	Mr. Goodlatte. Thank you, Mr. Chairman.
	This morning, the Judiciary Committee continues its
	examination of our Nation's--I have a brief delay here. Excuse
	me.
	This morning, the Judiciary Committee continues its
	examination of our Nation's Federal judicial system. It is
	widely recognized that the trust that the American people have
	in our court system is crucial to its success. While this trust
	has been cultivated over many generations, it can be quickly
	lost. This is why it is important that the judiciary continue
	to operate in a transparent manner at all times and handle the
	disputes before it efficiently, ethically, and impartially.
	This morning, we will hear from three witnesses who will
	present their ideas regarding ways to increase judicial
	transparency and accountability. These suggestions include
	greater use of audio and video recordings in courtrooms, free
	or lower cost access to court documents through the PACER
	system or potential replacements for it, and public disclosure
	of recusal decisions.
	Other issues we will consider today are the judicial
	disability and disciplinary processes. Decisions made by judges
	with undiagnosed medical conditions can be subject to challenge
	years later. It is crucial that all judges have the resources
	and confidential programs needed to assist them if they have
	any questions about their fitness to serve.
	Regarding judicial discipline, there have been relatively
	few impeachments of Federal judges by the House of
	Representatives. The Federal judiciary has its own internal
	disciplinary system that, in theory, addresses misconduct
	before the conduct escalates to the level where impeachment
	would be warranted. However, many Members of Congress have
	questions about the judiciary's disciplinary system.
	Today, we will explore this system further, including
	examining the remedies available for judicial misconduct, their
	application, and the constitutional and other limitations on
	those remedies.
	I want to thank our witnesses for making time available to
	be here in order to provide testimony for improving our
	Nation's judiciary.
	Mr. Chairman, I yield back.
	Mr. Issa. I thank the gentleman. It is now my pleasure to
	recognize the gentleman from Michigan, Mr. Conyers, for his
	opening statement.
	Mr. Conyers. Thank you, Chairman Issa.
	Welcome to all our witnesses.
	Today's hearing gives us an important opportunity to
	examine judicial transparency and ethics issues, but I would
	like to begin my remarks by addressing some of the troubling
	statements President Trump has made about judges and the
	judiciary.
	Earlier this month, the President disparagingly referred to
	a member of the Federal bench as a so-called judge and
	criticized his decision as ridiculous. This judge is now in
	receipt of death threats.
	Last year, while campaigning for the Presidency, he called
	into question the validity of a ruling by a Federal judge
	because of the judge's ethnic background.
	Most recently, President Trump, in opposing a decision
	rendered by the Ninth Circuit, said even a bad high school
	student could understand that his immigration ban was
	authorized by law and that it was a political decision.
	President Trump's personal attacks against individual
	judges as well as disrespectful comments regarding the Federal
	judiciary as a whole threatened the fundamental principles of
	our constitutional form of government, namely respect for the
	rule of law and an independent judiciary. Even his Supreme
	Court nominee, Neil Gorsuch, characterized President Trump's
	comments about the judiciary as disheartening and demoralizing.
	Respect for the Federal judiciary should be a nonpartisan
	issue, and this hearing is an example, an excellent example, I
	might add, of cooperation with respect to oversight of that
	branch. Yet we must also be mindful of the potentially
	destructive attacks against the Federal judiciary, even if
	those attacks emanate from the executive office of the
	President.
	Accordingly, I hope my friends on the other side of the
	aisle will join me today in condemning President Trump's
	comments threatening the legitimacy of our judicial branch and
	efforts to cast aspersions against individual Federal judges.
	An independent judiciary is critical, of course, to our
	Nation's constitutional system of checks and balances, and we
	should do everything possible to ensure that that system is not
	undermined.
	As to the additional areas that we will consider today, I
	do support having cameras in the courtroom, but continue to
	believe their impact must be more carefully considered. The
	Judicial Conference, for example, notes that cameras in the
	courtroom could potentially impair the fundamental right of a
	citizen to a fair and impartial trial, and Justice Elena Kagan
	warns that televised coverage of Federal court proceedings
	would encourage participants to play to the camera.
	I would like to hear proponents of cameras in the courtroom
	explain how those efforts will neither undermine a citizen's
	right to due process and a fair trial, nor have a material
	effect on an individual's willingness to testify out of fear of
	being a target for retribution or intimidation.
	Finally, I support increased transparency of the judiciary.
	Last week, the Ninth Circuit Court of Appeals provided live-
	stream coverage of the oral argument on the Administration's
	appeal of the lower court's imposition of a nationwide stay of
	President Trump's immigration order. Efforts such as these by
	the Federal judiciary, which makes their processes more readily
	available to the public, will promote even greater respect and
	understanding of the Federal court system and the rule of law.
	And as we promote transparency, we must also be mindful of the
	need to ensure the safety and security of our judges, law
	enforcement officers, and others participating in the judicial
	process.
	I thank and applaud the Chairman for holding this hearing.
	And I yield back the balance of my time.
	Mr. Issa. I thank the gentleman.
	I now--without objection, other Members' opening statements
	will be made in the record.
	Today we have a distinguished panel of witnesses whose
	written statements have been entered into the record. And
	without objection, all your written statements and extraneous
	material will be admitted into the record.
	Without objection, so ordered.
	But today, I would ask that you summarize your opening
	statements in about 5 minutes. To help you stay within the
	timing, you know the lights, you have all been here before,
	please, green means go, yellow means you got a minute, and red
	means you will get a ticket if you run the light.
	Before introducing our witnesses, it is the rule of the
	Committee that all witnesses be sworn. So I would ask that you
	please rise to take the oath and raise your right hands.
	Do you solemnly swear or affirm that the testimony you are
	about to give will be the truth, the whole truth, and nothing
	but the truth.
	Please be seated.
	Let the record indicate that all witnesses answered in the
	affirmative.
	Our witnesses today include Mr. Mickey Osterreicher.
	Mr. Osterreicher. Osterreicher.
	Mr. Issa. Osterreicher. More importantly, the general
	counsel for the National Press Photographers Association, who
	needless to say have been giving us images of the courts for,
	more or less, a century. Professor Thomas Bruce is the
	cofounder and director of the Legal Information Institute at
	Cornell University. Welcome. And Professor Charles Geyh is
	professor at Indiana University--your, what is it, Maurer----
	Mr. Geyh. Maurer.
	Mr. Issa.--School of Law. And each comes with a level of
	expertise to help guide us through three different areas that
	we are going to look at today. So welcome.
	You are recognized for 5 minutes.

	TESTIMONY OF MICKEY H. OSTERREICHER, ESQ., GENERAL COUNSEL,
	NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION (NPPA)

	Mr. Osterreicher. Chairman Issa, Ranking Member Conyers,
	Ranking Member Nadler, and other Members of the Subcommittee,
	good morning, and thank you for the opportunity to appear here
	today.
	My name is Mickey Osterreicher. I am of counsel to the law
	firm of Barclay & Damon, and I am here today in my capacity as
	general counsel for the National Press Photographers
	Association, an organization which was founded in 1946 and of
	which I have been a member since 1973.
	As the voice of visual journalists, the NPPA vigorously
	promotes and defends the rights of photographers and
	journalists, including intellectual property rights and freedom
	of speech in all its forms, especially as it relates to visual
	journalism.
	By way of background, I am an award-winning visual
	journalist with over 40 years experience in print and
	broadcast. During that career, I have covered hundreds of court
	cases from the Attica trials to the murder trial of O.J.
	Simpson. I was actively involved in the New York State
	experiment between 1987 and 1997 entitled, ``Electronic
	Coverage of Judicial Proceedings.'' And by electronic, I mean
	audiovisual recordings, still photography, broadcasting,
	televising, or internet streaming both in realtime or
	hyperlinked replay.
	In an era of fake news and alternative facts, there is no
	better way to ensure transparency and promote confidence in the
	fair administration of justice than to expand electronic
	coverage of Federal court proceedings. Transparent court
	proceedings improve the quality of testimony, persuade unknown
	witnesses to come forward, make trial participants more
	conscientious, and provide the opportunity to better observe
	the workings of our judicial system. To foster that essential
	principle, almost every State allows electronic coverage of
	criminal, civil, and appellate proceedings, to some degree.
	For many years, Congress has proposed legislation to allow
	such coverage, most recently by Representative Connolly and
	Judge Poe. Representative Nadler also introduced a bill in
	2015, which he just reintroduced. The NPPA commends and
	supports these ongoing efforts.
	More recently, there have been some advances and some lost
	opportunities in this area. For example, the Ninth Circuit
	began live-streaming audio of oral arguments in 2015, and the
	Second Circuit continues its policy of permitting electronic
	coverage for cases with heightened interest. By comparison, the
	Supreme Court has released same-day audio of an oral argument
	only once, despite numerous requests to do so. In 2015, it
	denied such a petition for two of the year's most important
	cases.
	The last Federal cameras pilot program officially ended in
	2015, and while the judicial conference voted against expanding
	or continuing that project, it did permit three of the
	participating trial court programs in the Ninth Circuit to
	remain operational. Just this month, electronic coverage was
	allowed in the State of Washington v. Trump, which was recorded
	and uploaded to the court's website.
	Last week, the telephonic arguments of the appeal in that
	case were heard live with approximately 137,000 connections to
	the audio stream from the court's YouTube site. CNN, which also
	broadcast the arguments, averaged 1.5 million total viewers
	during that hour. Millions more may have tuned in on cable news
	outlets, local news stations, and countless other news
	websites.
	These latest developments weigh strongly in favor of
	electronic coverage and should also prompt the Judicial
	Conference, along with the High Court itself, to finally
	promulgate common-sense guidelines, permanently allowing such
	access through the Federal court system, up to and including
	the U.S. Supreme Court.
	Justice Stewart noted in 1965, we move in an area touching
	the realm of free communication, and for that reason, if nor no
	other, I would be wary of any--of imposing any, per se, rule,
	which, in light of future technology, may serve to stifle or
	abridge true First Amendment rights.
	The Framers envisioned court as being part of a public
	square, a place in a merging--in an emerging Nation where
	anyone could stop in to observe the proceedings and be assured
	of the integrity of our system of justice. Given the increasing
	complexity of our society and the size of our communities, that
	aspiration is exceedingly more difficult to achieve. As Chief
	Justice Burger stated in a 1980 case, people in an open society
	do not demand infallibility from their institutions, but it is
	difficult for them to accept what they are prohibited from
	observing.
	The ability of the public to view actual courtroom
	proceedings should not be trivialized. It touches on an
	important right, which goes well beyond the mere satisfaction
	of viewer curiosity. And that right, advanced by electronic
	coverage, is the right of the people to monitor the official
	functions of their government, including that of the judiciary.
	Nothing is more fundamental to our democratic system of
	governance.
	The NPPA looks forward to working with you on these issues
	and thanks you for the opportunity to testify. I welcome your
	questions.
	[The prepared statement of Mr. Osterreicher follows:]
	[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

	__________
	Mr. Issa. Thank you.
	Professor Bruce.

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

	Mr. Bruce. Chairman Issa, Ranking Member Conyers, Ranking
	Member----
	Mr. Issa. If you could pull the mike slightly closer, I
	would appreciate it.
	Mr. Bruce. Sure.
	Mr. Issa. Thank you.
	Mr. Bruce. Chairman Issa, Ranking Member Nadler, Ranking
	Member Conyers, Members of the Committee, thank you for
	inviting me to appear before you today.
	My name is Tom Bruce. I am the Director of the Legal
	Information Institute at Cornell. We have been putting legal
	information online for the public for 25 years and currently
	reach an audience of approximately 32 million individuals each
	year.
	I am here to talk to you today about the operation and
	future direction of the PACER system for public access to the
	opinions of the Federal courts.
	Let me begin with three things that define PACER: First,
	PACER charges fees for access to public records. That has been
	the cause of a great deal of criticism, not only because fees
	erect a barrier for many, but because the revenue from fees at
	current levels considerably exceeds the cost of operating the
	system. That is inconsistent with policies established by the
	Congress in the E-Government Act of 2002.
	Second, PACER's technology has struggled to stay up to
	date. That was, to some extent, an accident of history. PACER
	was implemented shortly before the introduction of the
	worldwide web, and it was all too quickly seen as outmoded and
	out of touch with current technology. Over the last few years,
	it has made up some of the gap, but the system still falls
	short on a number of dimensions, notably in the area of search
	and retrieval.
	Third and most important, PACER suffers from a split
	personality. On the one hand, it is an electronic filing and
	case management system that supports the Federal courts with an
	audience of lawyers, judges, and court administrative
	personnel. On the other, and most important to the public and
	the Congress, it is a data publishing system that offers the
	work of the Federal courts to a very wide range of people,
	including litigants, researchers, and government itself.
	Equally, there are a number of things that PACER is not.
	First, PACER is not transparent in its business model or
	operations.
	Second, PACER is not an adequate facility for research on
	the activities of the Federal courts. That is chiefly because
	it does not provide bulk access to its data. Significantly,
	research activities that might be carried out on behalf of the
	Congress are impeded. Social Security cases, prisoner appeals,
	and immigration matters are all examples of areas in which
	study of judicial outcomes is important to those who have
	responsibility for investigation and evaluation of operations
	across the full breadth of the government.
	Third, PACER is not an effective protector of privacy. And
	finally, it is not an adequate vehicle for citable legal
	research because it lacks a system of unique identifiers.
	These are hard problems, especially given the scale and
	diversity of what is published in PACER, but they are soluble,
	provided that Congress acts. Both the Congress and the Federal
	courts have strongly and repeatedly announced their commitment
	to providing full access, even to unpublished opinions, at
	minimal or no cost.
	So what needs to be done? First, fees need to be removed as
	quickly as possible. Dissemination fees have strongly inhibited
	beneficial uses of the data contained in the primary record of
	the workings of our Federal courts. Consideration should be
	givento removing per-page viewing fees, or at the very least,
	paring them back to a level that more closely matches PACER's
	cost of operation.
	Second, the details of PACER's operations and business
	model need to be far more visible to the Congress and to the
	public. A CRS report describing the business and technical
	operation of the system in detail would be more than helpful
	and would bring welcome clarity to many of the issues involved.
	Third, the users of PACER's data publication services need
	representation in the planning and design processes. Published
	articles by PACER's designers celebrate the responsiveness of
	its design to the needs of users of the e-filing and case
	management systems. That can be charitably interpreted as a
	sound effort to respond to a range of important customers who
	are in a position to express their needs to the designers.
	Understandably, those to whom the designers answer are
	preoccupied with the e-filing and case management portions of
	the system and are not nearly as concerned with publication.
	Fourth, PACER's data publishing operation should move to a
	new home. Why not put responsibility for data publishing
	operations with an organization that has publishing as its
	primary mission? The Government Publishing Office and the AO
	already have a pilot program for the publication of judicial
	opinions underway. It has been successful. It appears to be
	scalable to the dimensions that PACER would require.
	Much work would still be needed. GPO's system only extends
	right now to about 100 courts. Its chronological range is
	narrow, and better metadata is needed even within PACER itself.
	But the potential benefits are many. First and foremost
	will be the removal of barriers that prevent the public from
	exercising the right to know the laws that govern them.
	Publication systems that permit research utilizing the full
	range of data available from PACER will make it easier for the
	Congress to fulfill its responsibilities, improve the
	efficiency and functioning of the judiciary, and stimulate new
	approaches to legal information, while encouraging new and
	innovative businesses.
	Thank you for the opportunity to testify today. I look
	forward to your questions.
	[The prepared statement of Mr. Bruce follows:]
	[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

	__________
	Mr. Issa. Thank you.
	Professor Geyh.

	TESTIMONY OF CHARLES G. GEYH, JOHN F. KIMERLING PROFESSOR OF
	LAW, INDIANA LAW SCHOOL

	Mr. Geyh. Mr. Chairman, it is a privilege to serve--to
	appear before the Subcommittee I served on.
	Mr. Issa. Perhaps the microphone a little closer in and on.
	Mr. Geyh. There we go. If I turn it on, it works better.
	Mr. Issa. Superb.
	Mr. Geyh. It is a privilege to appear before the
	Subcommittee that I served as counsel nearly 25 years ago, dry
	gulp.
	The Constitution works and the judiciary it established
	works because we believe it works. If we lose that faith in the
	judicial system, Congress can gut its budget, the President can
	defy its orders, and the role the Framers envisioned for the
	judiciary keeping the other branches in check will be lost. And
	so I do share Mr. Nadler and Mr. Conyers' concern that there is
	a difference between robust criticism, which I think we need,
	it is essential to accountability; and assaults on the
	legitimacy of the judiciary as an institution, which do worry
	me because the judiciary is fragile in that regard.
	Unlike Congress, which derives their legitimacy from the
	voters, the judiciary doesn't have voters. They derive their
	legitimacy from their perceived integrity, their perceived
	impartiality, their perceived independence, which really is the
	subject of this hearing today, because the mechanisms, like
	recusal, like discipline, like codes of conduct, like
	disclosure are ways that we hold the judiciary accountable.
	They are the ways that we hold the judiciary, you know, make
	sure that the judiciary is legitimate.
	To those ends, let me talk first briefly about
	disqualification. I think the substantive standards are fine. I
	think that there is a concern, though, with process. Congress
	has not legislated the process for disqualification, which
	means that it is all over the map. And the norm that worries me
	most is the norm that judges get to decide their own
	disqualification, which is like grading your own homework.
	I think it is problematic, from an appearance standpoint,
	for judges to be put in a position of being asked, are you too
	impartial to sit, too partial to sit, and the person who
	answers that is the judge who may be too partial to sit. I
	mean, we need to work on that one.
	Second, when it comes to codes of conduct, the Judicial
	Conference promulgated codes beginning in 1973, and they are
	terrific. Unfortunately, the Supreme Court does not have a code
	that applies to it, and I think that is a problem. Twenty-five
	thousand judges in the United States, nine are not subject to a
	code of ethics and they are the most powerful judges in the
	country. The optics are bad.
	Now, the Chief Justice tells us that they don't need a code
	because they consult the code that applies to the lower Federal
	courts. The trouble with that is that you know and I know that
	you are going to react differently to a code that applies to
	someone else as opposed to a body of rules that applies to you,
	and the exhibit A for that would be Justice Ginsburg from last
	fall when she starts criticizing then candidate Donald Trump,
	under circumstances in which the Code of Conduct says, no, you
	don't. Two days later, she retracts those statements after the
	code is called to her attention. I would like to think that if
	they had a code and bound themselves to it, this problem would
	never have occurred.
	Turning to discipline. The disciplinary process has been in
	place since Congress created it in 1980. It did fall into some
	disrepair about 10 years ago, and thanks to the vigilance of
	this Committee, the process got jump-started. And I would like
	to congratulate the Judicial Conference for making some
	significant improvements in 2008 and again in 2015 that have
	made it work better.
	My lingering concern, frankly, is that--with the
	disciplinary process is that, the statutory standard is
	exceedingly vague. Misconduct is defined with reference to
	conduct that is prejudicial to the effective and expeditious
	administration of the business of the courts. I worry a little
	bit that that lets the judiciary do whatever they want to and--
	or more--and that is too strong. I think they do a
	conscientious job. But the trouble is that from a perception
	standpoint, that can mean just about anything.
	The solution that virtually every State has employed is to
	say we can have this general disciplinary standard, but we
	define it with reference to the Code of Conduct. Has the judge
	violated the Code of Conduct? If so, then is the violation
	severe enough to warrant discipline? But by tethering this very
	vague standard to the code, everybody understands what the
	operative rules are and when a judge is going to be at risk.
	Finally, I didn't talk about this at length in my
	testimony, in my written testimony, but a point about
	disclosure. You know, I think that the financial disclosure
	statements are essential for the general public, they are
	essential for--they are essential for lawyers who have clients
	who appear before judges, and they are essential for watchdog
	organizations. My concern is that we still don't have a system
	in place where we are enabling the public to get ready and open
	access online to those disclosure statements.
	I understand where the judiciary is concerned, and I
	suspect the judiciary's primary concern is for the safety and
	security of its judges. There are nasty people out there who
	appear before judges, and they worry that information about the
	judge's family and addresses can be problematic. That, I think,
	is best resolved by redaction rules and not by hiding the ball
	when it comes to forms that the public is legitimately entitled
	to receive. Thank you.
	[The prepared statement of Mr. Geyh follows:]
	[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

	__________
	Mr. Issa. I thank all three of you. I will now recognize
	myself for a round of questioning.
	And I would like to ask unanimous consent that the
	statement by Professor Jonathan Zittrain be placed in the
	record in which, essentially, he offers to make available PACER
	for free.* And I will begin there.
	---------------------------------------------------------------------------
	*Note: The material referred to is not printed in this hearing
	record but is on file with the Subcommittee, and can also be accessed
	at:

	http://docs.house.gov/Committee/Calendar/
	ByEvent.aspx?EventID=105547
	Mr. Issa. Professor Bruce, is that viable? Is it viable to
	simply offload all of the information of the courts,
	potentially, to make it free without commercial advertising?
	Mr. Bruce. It is very difficult to tell, and that is part
	of the reason that I am interested in getting more detailed
	reporting of PACER's finances, and people have made various
	suggestions over the years. There is some thought that, for
	example, the entire cost of covering PACER could be generated
	through filing fees. There is also--there is also the
	possibility that one could go into some form of commercial
	licensing for those who are actually making commercial use of
	the data as another possible source of revenue.
	But all of those, at this point, are merely informed
	guesses because the finances of PACER are not particularly
	transparent. I received this morning, as you have, a bunch of
	information about PACER's financials that I have not seen
	before.
	As far as operating from a third party point of view, if
	someone were to hand that to us tomorrow, it would be difficult
	to do.
	I do think that the people who are operating FDsys at the
	Government Publishing Office are in a good position to do it.
	They are a quarter of the way there already in terms of the
	number of courts that they are covering.
	Mr. Issa. Thank you.
	Now we go to cameras in the courtroom. Mr. Osterreicher,
	let me move away from cameras in the courtroom directly and
	just go a round of quick questioning for my own edification. Is
	it reasonable to assume that since the courts in most areas of
	the country allow witnesses to be video deposed and those
	depositions, in video form, are admissible, that in fact video
	has a practical value to juries making decisions?
	Mr. Osterreicher. I think it absolutely does. Part of a
	jury's function is to look at the demeanor, character of those
	people testifying. Sometimes just seeing a transcript or even
	just hearing the audio is not enough. So I think that video is
	a very important component.
	I also think, even though most court proceedings are not
	very compelling television, if you have high quality----
	Mr. Issa. But you have been there for the good ones.
	Mr. Osterreicher. Yes. But even then, sometimes, you know,
	it has been said that most courtroom proceedings are like
	watching paint dry. It just is not the Perry Mason confession
	moments that we are used to seeing in an hour's worth of
	television.
	But that said, I think they are far more interesting than
	just the transcripts and audio themselves. Though, in the
	alternative, as we have seen just recently, there are a lot of
	people that wanted to hear that oral argument in the Ninth
	Circuit.
	Mr. Issa. That is one thing we can count on is, even when
	paint's drying, somebody will dump the bucket every once in
	awhile and it will get very exciting in the room.
	Professor Geyh, I want to spend the rest of my time asking
	a few questions on ethics. You mentioned conflicts of interest,
	and this is a great question. Do you believe that we have the
	obligation to ensure that a system is in place that is
	verifiable as to people who have conflicts and thus there has
	to be disclosure in order to determine whether there may be a
	hidden conflict?
	Mr. Geyh. I would agree.
	Mr. Issa. Do you believe that, at a minimum, a body in
	camera must make that decision? And when I say in camera,
	obviously, you talked about redacting, but however it is done,
	it has to be sufficient to understand where the conflicts may
	come while, in fact, protecting the privacy--necessary privacy
	of judges.
	Mr. Geyh. Right. And I would--there is a Judicial
	Conference committee on financial disclosures that I assume
	would be able to help with that, but yes.
	Mr. Issa. Now, currently, each circuit is the highest
	authority for whether a judge is competent. Isn't that correct?
	Mr. Geyh. Competent to--oh, in terms of having a conflict?
	Mr. Issa. No, if a judge becomes unable----
	Mr. Geyh. The disability provisions.
	Mr. Issa. Yeah, under disability, it is decided----
	Mr. Geyh. The circuits control that.
	Mr. Issa. And constitutionally, what basis is there for a
	circuit to decide it when, in fact, the Constitution only gives
	authority to the Supreme Court?
	Mr. Geyh. What is the constitutional authority for the
	legislation that provides for that, you mean?
	Mr. Issa. Well, what is the constitutional basis for
	putting it in the circuit rather than holding some level of
	responsibility? In other words, do we have--have we written
	statutes that negate the ultimate responsibility of nine men
	and women on the court?
	Mr. Geyh. Well, if we are talking about the competence
	issue, I think that--I mean, the way I look at it is the 1980
	legislation provided for a circuit-based disciplinary and
	competence standard that dates back to 1939.
	Mr. Issa. Okay. And I will be brief with the last two
	wrap--quick questions. One, currently, there is no transparency
	as to that. In other words, you really don't know whether
	somebody is being considered for either their technical
	competence, their health competence, or their ethical
	competence.
	Mr. Geyh. In the early stages of the process, it is not.
	That is right.
	Mr. Issa. And lastly, currently, there is no requirement
	for physical or mental evaluations of judges even into their
	70's, 80's, and 90's?
	Mr. Geyh. Not that I am aware of.
	Mr. Issa. Thank you.
	I now recognize the Ranking Member for his questions.
	Mr. Nadler. Thank you, Mr. Chairman. I have several
	questions. Before I ask them, I ask unanimous consent that a
	statement from our colleague, Mr. Connolly of Virginia, be
	entered into the record regarding his legislation, the
	``Cameras in the Courtroom Act,'' which would require
	television coverage of the Supreme Court, along with a copy of
	the bill.
	Mr. Issa. Without objection, so ordered.
	[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]


	__________

	Mr. Issa. And we will not take that as an endorsement of
	the alternate legislation, I trust.
	Mr. Nadler. No, no, no, just as a reference. Thank you.
	Mr. Osterreicher, it has been estimated that between the
	live stream on YouTube, Facebook Live, and simulcast on the
	cable networks, more than a million people tuned in to listen
	to the Ninth Circuit's oral arguments in the executive order
	case. Do you think that the ability to listen to the arguments
	without any news filter helps people counter the President's
	assertions or judge the validity of the President's assertions
	about the integrity of those proceedings?
	Mr. Osterreicher. I think it is critical that people in--as
	I said, in this day and age of alternative facts and
	accusations of fake news against the media, that the people
	have an opportunity to see and hear for themselves how
	government is conducted in all three branches. Unfortunately,
	what we have seen is, in the judicial branch, that has not
	always been available, at least at the Federal level.
	Mr. Nadler. Well, here it wasn't the media's
	characterization. It was the President's characterization of
	the hearing as terrible and horrible and so forth. And do you
	think that the fact that over a million people at least heard
	the audio stream helped counter that?
	Mr. Osterreicher. It is a much more direct form of
	democracy where people can see and hear for themselves, just as
	our Framers envisioned being able to, you know, stop by a court
	on their way about their daily activities. Unfortunately, these
	days, that can't happen, but we do have the capability of that
	type of communication through audiovisual coverage.
	Mr. Nadler. Thank you.
	Now, the argument before the Ninth Circuit was a very high-
	profile case, obviously, and on rare occasions, the Supreme
	Court has released audio of high-profile cases within minutes
	of the arguments' completion instead of at the end of the week,
	as is the normal practice. Is there any rational distinction
	between how the Supreme Court handles high-profile cases and
	how it handles less newsworthy cases?
	Mr. Osterreicher. I don't think that there should be. I
	think that they should develop some standard practices. In
	terms of releasing, they have only done that once. Most of the
	time, even in high-profile cases, in the two that I mentioned
	last year, they still said that, in a very terse statement,
	they would stand by their Friday release. And as most people
	know, Friday is not exactly the best day to get people's
	attention when they are trying to start their weekend.
	Mr. Nadler. It is a dump day. But is there any rational
	distinction between the cases, other than that they were high
	profile, where the Supreme Court released the audio transcript
	quickly and most cases where they didn't?
	Mr. Osterreicher. I don't think that there really should
	be. Again----
	Mr. Nadler. Should be. But is there--is there a rational
	distinction that you can make that said: Well, here the Supreme
	Court said yes, but there, they said no for the following
	reason?
	Mr. Osterreicher. No.
	Mr. Nadler. There is no rational distinction here.
	Mr. Osterreicher. Not as far as I can see.
	Mr. Nadler. When the Supreme Court has released audio more
	quickly, have we witnessed any ill effects?
	Mr. Osterreicher. No. I mean, it is an appellate review, so
	we are not looking at somebody's Sixth Amendment rights coming
	into play as we might in a trial court.
	Mr. Nadler. That is why my bill doesn't include trial
	courts.
	Mr. Osterreicher. I understand.
	Mr. Nadler. One of the criticisms of bringing cameras into
	the courtroom that we hear most often is that the lawyers or
	judges may play to the cameras. Are you aware that this has
	occurred in any of the courts that participated in the Judicial
	Conference's pilot program?
	Mr. Osterreicher. Not that I am aware of. And as a matter
	of fact, in that 10-year experiment in New York, I think the
	most telling statistic is the fact in the tens, if not hundreds
	of thousands of cases that were heard, not one appeal was taken
	in a criminal court case or in any case based on the fact that
	someone didn't get a fair trial under the Sixth Amendment
	because----
	Mr. Nadler. In those----
	Mr. Osterreicher [continuing]. Of the fact that there was a
	camera in the court.
	Mr. Nadler. In those trials--in that trial situation, I
	suppose you would have to call it, are you aware of any
	allegations by anyone that any--that any hearing was affected
	by playing to the cameras?
	Mr. Osterreicher. No, there has always been that
	speculation, but----
	Mr. Nadler. Speculation. But any allegation that in that
	case this is what happened?
	Mr. Osterreicher. None that I am aware of.
	Mr. Nadler. Thank you.
	And, Mr. Bruce, you have given a lot of careful thought to
	various ways that you believe PACER could be improved, both
	from a technical standpoint and ways to enhance public access
	to the documents contained in PACER. Have you had the
	opportunity to share your views with the administrative office
	of the courts?
	Mr. Bruce. No, I have not, sir.
	Mr. Nadler. Oh. I was going to ask if they were receptive
	to your recommendations, but obviously, you haven't shared it
	with them.
	Have you asked for the ability to share it with them?
	Mr. Bruce. I have not.
	Mr. Nadler. Is there a reason for that or----
	Mr. Bruce. I am, to be honest with you, sir, fairly new to
	the issue. I have monitored it for years. It has not been--it
	has not been something to which I have paid deep attention
	until recently.
	Mr. Nadler. And finally, what sort of ability does the
	public have to comment on PACER, if any?
	Mr. Bruce. None that I am aware of.
	Mr. Nadler. Thank you. I yield back.
	Mr. Issa. I thank the gentleman.
	We now recognize the Chairman of the full Committee, the
	gentleman from Virginia, Mr. Goodlatte.
	Mr. Goodlatte. Thank you, Mr. Chairman.
	Mr. Geyh, in cases of alleged misconduct, this Committee
	has deferred to the Judiciary Committee, in some instances, for
	an initial investigation before its potential referral to us
	for further action, including the possibility of impeachment.
	Does the judicial branch operate in an efficient manner when it
	is conducting its investigations?
	Mr. Geyh. Much more so. I think that this Committee lit a
	fire under the judiciary about 10, 15 years ago when this
	Committee reached the point of actually considering the
	impeachment of Judge Real. And part of it was to say: Look, if
	you are not going to do your job, we are going to have to jump
	in. And that, I think, resulted in some very positive things,
	including some upgrades to the judicial disciplinary process.
	I now feel as though they are taking it seriously. I think
	that this kind of oversight is critical to maintain that. But
	yes, I do think that they are doing a much better job than they
	were if I were testifying 15 years ago.
	Mr. Goodlatte. I generally agree with that. I have had
	experience handling two impeachments of Federal district court
	judges. In one of those instances, I am not sure that the
	Committee would have had the wherewithal to proceed without the
	preliminary investigative work that was done by the, I believe
	in that case it was the Fifth Circuit Court of Appeals.
	The Justice Department declined to prosecute in that case,
	and it left us in a situation where we really had to develop
	our own case. We had four Articles of Impeachment. In the end,
	the Senate voted to convict that judge in all four instances.
	And I would give a lot of credit to the work that was initially
	done by the Fifth Circuit to lay the groundwork and provide
	information to us that was the foundation for our building a
	case.
	However, I also recall that in that case there were a
	number of judges that did not believe that the offenses that
	had been committed by that judge were indeed impeachable
	offenses. And so I am wondering if this process, the way it is
	laid out today, puts the judiciary in an awkward situation
	where people who work with each other on a regular basis are
	called upon to pass judgment upon those same members of that
	same circuit of the judiciary. I am wondering if you have any
	observations about that?
	Mr. Geyh. Well, I am not sure if you are talking about
	Judge Porteous.
	Mr. Goodlatte. I am talking about Judge Porteous.
	Mr. Geyh. I was an expert witness for the prosecution in
	that case.
	I differentiate in my own mind between conduct that judges
	may think is bad behavior warranting discipline and conduct
	that is so bad that it warrants impeachment. And I felt as
	though that was an example of the system working as it should
	because they worked it through the pipeline and ultimately
	recommended that impeachment be taken.
	The Real case that I talked about before is more of a case
	where I think it was dysfunctional, because then the system
	ground out for years in the disciplinary phase without the
	public having adequate notice.
	I do think--what you are calling attention to is the
	inherent problem of judges judging their own, and that is an
	inherent problem. And to my way of thinking, the way we address
	that problem best is by keeping, you know, feet to the fire in
	a limited way by basically having hearings like this in which
	we bring the judges forward and say, what is the process, how
	does it work, tell us how it works, and whether we are getting
	adequate transparency at what points in the process so that we
	can look at it and say this is good.
	The one last point I will make is that Congress abandoned
	meaningful impeachment investigation in the 1940's because it
	is bloody exhausting, that they waited for someone else, either
	a prosecution or the judicial branch to go first. I think that
	is preferable, given how much work this body has, if we can
	manage to make that doable.
	Mr. Goodlatte. I take it then, however, that you think we
	should have another panel or another hearing in which we invite
	judges themselves to come and talk about these same issues that
	you are----
	Mr. Geyh. I think so. I think that is important, yeah.
	Mr. Goodlatte [continuing]. Addressing here today, and I
	agree with you.
	Mr. Osterreicher, some have expressed concern about
	sensitive information being made public if cameras are allowed
	into the courtroom. How can sensitive information best be
	protected when cameras are present?
	Mr. Osterreicher. Well, I think that every legislation that
	I have seen really relies on the discretion of the trial court
	judge. He or she should be the final arbiter as to what happens
	in his or her courtroom.
	At the appellate level, I think, you know, there is a
	number, in all the briefings, if something needs to be
	redacted, that is fine, but I can't imagine, during an oral
	argument at the appellate level, that we would see that
	sensitive information.
	So at the trial court level, once again, I think that
	should be in the discretion of the presiding judge.
	Mr. Nadler. Would the gentleman yield? Would the gentleman
	yield for a second.
	Mr. Goodlatte. Yeah, I will be happy to yield.
	Mr. Nadler. And in any event, if that problem exists, that
	problem exists with the audio which is released now. The camera
	doesn't really add or detract from that problem.
	Mr. Goodlatte. I thank the gentleman for his comments. I
	thank the witness, and I yield back.
	Mr. Issa. I thank the gentleman.
	And we now go to the gentleman from Michigan, Mr. Conyers.
	Mr. Conyers. Thank you so much.
	I want to go back to the cameras in the courtroom for just
	a minute. Some believe that cameras in the courtroom could
	heighten the level of and the potential threats to Federal
	judges, particularly those proceedings involving highly
	controversial matters.
	Mr. Osterreicher, how do you feel about that?
	Mr. Osterreicher. Well, I think it is very difficult to put
	the genie back in the bottle. As we have seen from the
	internet, if you do a search, you can usually find somebody's
	image with their name. The last time that I testified before
	the Subcommittee, that issue was raised as well by the Federal
	trial court judge who was also one of the witnesses. I had
	never seen her before but was able to, once again, google her
	name and come up with lots of images of her.
	So the fact is that if somebody is testifying in court,
	that their image will be shown, I think--I certainly understand
	the concerns of the jurists there. But again, in terms of the
	presiding justice, if there is a security issue with one of the
	witnesses, then that judge has the ability to decide that that
	video not be recorded or broadcast.
	Mr. Conyers. Professor Geyh, in your testimony, you state
	that there are 25,000 judicial offices in the United States.
	All but nine, of whom are most visible and influential nine in
	the Nation, are not subject to a Code of Judicial Conduct.
	Should Congress consider legislation that requires the Supreme
	Court to promulgate a code of conduct applicable to itself?
	Mr. Geyh. I think so. Steve Gillers and I wrote an op-ed
	last year in support of Mr. Murphy's bill that did just that.
	And you know, in a perfect world, the judiciary would quietly
	appoint a Committee and promulgate a code of its own based on
	the Code of Conduct for U.S. judges, but it hasn't done that.
	And I do think that if we are concerned about the legitimacy of
	the judiciary, we really ought to think seriously about
	insisting that they take that step.
	Mr. Conyers. And let me add this. Is it possible that
	President Trump's recent statements about the judiciary could
	cause citizens to lose faith in the rule of law and the
	judiciary, and why would that be a huge problem if that is so?
	Mr. Geyh. In my view, sustained attacks not in the form of
	criticism of judicial decisions, not in the form of criticism
	of judges, but suggesting that the judiciary should not be
	respected because the judges are so-called because they are
	only deserving of respect if you--if they do what the President
	wants, over the long term, that can erode public confidence in
	the independent judiciary.
	And let me just say that I am not a social scientist, but I
	follow a lot of social science about this, and the social
	scientists have drawn a line between talking about the courts
	as legal realists where they are influenced by their ideologies
	and so forth. The public understands that. Ninety percent of
	the public is cool with that. They understand how that works.
	It doesn't cause them to think twice about the legitimacy of
	the courts.
	The line gets crossed when they are perceived as just
	politicians in robes. In other words, not just that these are
	honorable people who may be influenced by their backgrounds and
	experience, but they are politicians in robes. And the concern
	I have is when you are calling them just political, when you
	are saying they are so-called, when you are calling them
	disgraceful is that you run that risk, and at that point, I
	think you can--very quickly, the judiciary can fall like a
	house of cards if we lose that legitimacy.
	Mr. Conyers. Thank you so much. Is it possible then that
	President Trump's recent statements about the judiciary could
	cause citizens to lose faith in the rule of law and the
	judiciary?
	Mr. Geyh. I would like to think that the American people
	are made of sterner stuff in the sense that if this persists,
	we have a serious problem. My hope is that the response to
	those attacks creates a public debate that allows for this
	problem to be neutralized. So I regard--I join conservative
	scholar Will Baude, who was in the Washington Post last
	weekend, saying these attacks are deadly serious. By
	themselves, I am not sure that they are going to diminish the
	legitimacy of the judiciary, but if gone unresponded to or
	uncorrected, they could.
	Mr. Conyers. My final question is to Director Bruce. What
	barriers should be removed that prevent the public from reading
	the opinions of the court, in your estimation?
	Mr. Bruce. The first and most important barrier is
	economic. It is the per page viewing fee. The second is a
	problem of sort of practical obscurity that has to do with the
	data in the system. So, for example, in PACER currently, it is
	actually not possible to retrieve, with any certainty, the
	author of a specific opinion. In other words, if you want to
	see all the opinions by Judge Smith, that cannot be done with
	complete confidence. And there are other metadata lacks we
	could point at, but that is the most striking one.
	Mr. Conyers. Thank you so much.
	Thank you, Mr. Chairman.
	Mr. Issa. I thank the gentleman.
	We now go to the gentleman from Pennsylvania, Mr. Marino.
	Mr. Marino. Thank you, Mr. Chairman.
	Welcome, gentlemen, and let me get directly to the issue.
	Do any of you support cameras in the courtroom other than,
	other than appellate arguments? And start with you, Mr. Geyh.
	Mr. Geyh. I support it only in appellate arguments. I
	support it in limited use in trial scenarios, carefully
	circumscribed to protect litigant rights.
	Mr. Marino. Professor Bruce?
	Mr. Bruce. I agree with Professor Geyh.
	Mr. Marino. Okay. Sir?
	Mr. Osterreicher. I support them in all aspects of the
	judicial proceedings. For all these years, all of the concerns
	that have been expressed have been shown to just be
	speculative.
	The last time the Supreme Court heard a case based on the
	fact that somebody claimed they didn't get a fair trial, due to
	cameras was 1981 in Florida v. Chandler.
	So I think, again, under the discretion of the trial court
	judge, that cameras are absolutely crucial to allow the public
	to see what goes on in courtrooms.
	Mr. Marino. But sir, don't you think that speculation is
	something that really should not play a part in this,
	particularly in a criminal proceeding?
	In a capital murder case for the person--the defendant, for
	the family members, who are sitting there because of the
	victim, anything that we can prevent from swaying a decision
	other than the facts before the jury, I think, is most
	paramount. Do you have a response?
	Mr. Osterreicher. I believe having been in courtrooms,
	throughout that 10-year period and beyond, that the jury, the
	participants, are completely unaware of the fact that there are
	cameras.
	And that was when there were actual personnel in the
	courtrooms. Now we have multiple cameras in this room. I think,
	for the most part, eventually, people get used to the fact that
	they are there. We're videotaped and photographed a dozen if
	not more times a day----
	Mr. Marino. Don't you think that a witness--a witness,
	particularly a child, would have reservations about testifying
	in front of a camera? Don't you think that--look, there's
	enough grandstanding in Congress before the cameras in hearings
	and on the floor. Can you imagine what would take place in a
	courtroom?
	Mr. Osterreicher. Well, I kind of saw what took place in
	the courtroom during the O.J. Simpson trial.
	Mr. Marino. And that was a circus in and of itself. Even
	the judge--even the judge, in my opinion, spent too much time
	looking at the cameras as did defense and prosecution. This is
	a dangerous, dangerous area to get into.
	I was a prosecutor for 18 years and a rule of law person,
	you know, and the last thing we need is speculation that, well,
	nothing will happen. What if something happens?
	Mr. Osterreicher. But that in itself is speculation. I
	think, you know, in terms of----
	Mr. Marino. It's not a speculation as to whether a person's
	going to be executed, whether a victim or a victim's family is
	going to seek to receive justice.
	I have no problem at the appellate level, but going into
	the courtroom is--it's just another entertainment to be turned
	into a circus, as we see now, particularly with video cameras,
	people with their cell phones. This is--we're treading on
	dangerous, dangerous area here as far as rights are concerned
	and the rule of law. I'll let you respond.
	Mr. Osterreicher. I understand and respect your opinion. I
	think when you're talking about a child or a reluctant witness,
	once again, the trial court can decide whether or not----
	Mr. Marino. So who makes this determination? Every single
	judge? Who makes the determination? A panel of judges? You
	three? Us in Congress? Who sits down and determines what the
	guidelines are?
	Mr. Osterreicher. I think that each judge in--that is
	presiding over that courtroom, just like they have to make
	rulings----
	Mr. Marino. Well, we have numerous--we have numerous,
	multiple decisions made as to whether there'll be a camera
	there or whether there will not be a camera there and nothing
	consistent. I think you understand my position on this. And I
	yield back the remainder of my time.
	Mr. Issa. Can I--would you yield to me?
	Mr. Marino. Certainly.
	Mr. Issa. I want to follow up on his question. In a
	criminal trial, you have somebody who is innocent until proven
	guilty. If you stream live even their testimony or their face,
	are you or are you not, in fact, making a public
	characterization? And is that something that's--and I know they
	do it in State court. Is that something that we must do, or is
	it something that we'd like to do?
	And I think that's where the gentleman from Pennsylvania's
	question goes, where he looks at appellate and says, we could
	be onboard, because we don't have this question of innocent
	people, whether they're witnesses, plaintiffs, defendants.
	So I would follow-up and just ask, is this something that
	would be nice to do, that you would like to do, or, in fact, is
	getting the appellate made universally available, including the
	Supreme Court, more likely to be something where the American
	people have a right to know, and there's less conflict
	involved?
	Mr. Osterreicher. I would be happy to start anywhere. And
	if it's at the appellate level, I think there should be a
	rebuttable presumption that courtrooms are open and open to
	cameras. And then if there is something that can refute that,
	for whatever reason, at either the appellate level, the Supreme
	Court, or a trial court level, then that can be dealt with. But
	that's just something that I think the public has a right to
	see.
	We've all, I think, are in agreement that courtrooms are
	open to the public, and kind of blaming the camera for the
	circus-like atmosphere that goes on sometimes inside and
	sometimes outside the courtroom, I think, is shooting the
	messenger.
	The example that I would use at a Federal level is during
	the trial of the Oklahoma City bomber. There were cameras in
	the courtroom that were used to broadcast closed circuit TV so
	that people back home where the bombing took place could watch
	that. And, unfortunately, the public missed an opportunity to
	see a well-conducted trial by Judge Matsch there versus the
	circus that we saw in O.J.
	Mr. Issa. I appreciate that.
	We now go to the gentleman from Georgia, Mr. Johnson, for 5
	minutes.
	Mr. Johnson of Georgia. Thank you, Mr. Chairman, for
	holding this hearing.
	And thank you, gentlemen, for being here today to testify.
	Mr. Osterreicher, in Professor Geyh's remarks, his written
	remarks, and also his testimony, he lays out the principle that
	Federal judges derive their legitimacy from the respect that
	they command as a result of their personal competence,
	impartiality, independence, and integrity? Do you agree with
	that statement?
	Mr. Osterreicher. I do.
	Mr. Johnson of Georgia. And how you about, Professor Bruce?
	Mr. Bruce. Yes, I do.
	Mr. Johnson of Georgia. And to maintain that respect that
	they command as a result of the perception of competence,
	impartiality, independence, and integrity, judges should make
	decisions according to the law, unclouded by personal bias or
	conflicts of interest. That's another statement that Professor
	Geyh makes in his written testimony.
	Do you both agree with that as well?
	Professor Bruce and Mr. Osterreicher?
	Mr. Osterreicher. I do.
	Mr. Bruce. Yes, I do.
	Mr. Johnson of Georgia. And do you also agree that when the
	public perceives a lack of competence, impartiality, or bias in
	favor of one party against the other, then the integrity of the
	judicial branch is undermined?
	Mr. Bruce. Of course.
	Mr. Osterreicher. Yes, but that's a more subjective view
	depending on your point of view then.
	Mr. Johnson of Georgia. Well, but judges should strive to
	avoid an appearance that they might be biassed in favor of one
	party?
	Mr. Osterreicher. Absolutely.
	Mr. Johnson of Georgia. And this is the reason why judges,
	Federal judges, are bound by the code of conduct for United
	States judges--excuse me--for United States--yes, for the
	United States judges. Correct?
	Mr. Osterreicher. Yes.
	Mr. Johnson of Georgia. Is to protect those ideals and to
	ensure that they abide by those ideals.
	But it's troubling that U.S. Supreme Court justices are not
	bound by a--or by that code of conduct for United States
	judges.
	Do you have the same bad feeling about that that I and
	Professor Geyh have, Mr. Osterreicher?
	Mr. Osterreicher. I think that it should apply across the
	board to all the judges.
	Mr. Johnson of Georgia. You, Professor Bruce?
	Mr. Bruce. For what the opinion of a computer scientist is
	worth, yes, I do.
	Mr. Johnson of Georgia. Well, tell me, is there any reason
	why there is some uniqueness of the United States Supreme Court
	justices that would exempt them from some code of ethics or
	code of conduct?
	And you've already answered that question, so let me--let
	me ask this: Professor Geyh, is there any reason--is there any
	constitutional basis that would prevent Congress from imposing
	upon the U.S. Supreme Court justices a rule that they abide by
	the code of conduct for United States judges, or that they
	write a code of conduct for themselves and abide by it?
	Mr. Geyh. Steve Gillers and I are both of the opinion that
	the necessary and proper clause, coupled with the power to
	regulate the appellate jurisdiction of the Supreme Court, gives
	this body the power to insist on a code of conduct.
	I think for those of us who are originalists, I think it's
	useful to know, you know, that the original Congress was happy
	to identify how many judges that would have to be on the
	Supreme Court, when they would sit, where they would sit. It
	made them get on horseback and run around the country.
	And so against the backdrop of those early regulations, the
	idea that you would simply say, look, we want to make sure that
	our judiciary, as a condition of the appellate process, that
	our judges subscribe to basic ethical principles strikes me as
	being within the zone.
	I'm not sure--there might be a counter. There may well be
	others who disagree, but I think there is congressional power
	for that.
	Mr. Johnson of Georgia. Thank you.
	Mr. Osterreicher, do you agree with that?
	Mr. Osterreicher. I absolutely do. I think that,
	unfortunately, I believe what we're seeing now is the Supreme
	Court promulgates its own rules. So that, I think, would be the
	explanation for why they don't have rules that are in line with
	the other justices.
	Mr. Johnson of Georgia. Well, I'm sure that justices,
	unlike judges, want to be judges of their own cases. And I
	think that whenever you have a justice that is solely
	responsible for judging an issue of recusal, then it diminishes
	the respect that people have for the court's perception of
	abiding by the law and being unbiassed, impartial, and all the
	rest.
	And with that, I will yield back. Thank you.
	Mr. Issa. I thank the gentleman.
	We now go to the gentleman from Idaho, Mr. Labrador.
	Mr. Labrador. Thank you, Mr. Chairman. Pleased to be
	joining this Subcommittee and look forward to talking about
	this issue and many other issues about the Federal judiciary.
	Mr. Osterreicher, I have a quick question. I appreciate
	your approach to transparency in the courtroom and the role
	that cameras and live streaming can play. I was actually a
	criminal defense attorney, and I practiced in Federal courts. I
	was also a law clerk in the Federal courts in Idaho, and I'm
	ambivalent and a little bit conflicted about having cameras.
	Because I do see--you just gave the example of the O.J.
	Simpson trial and then you mentioned how unfortunate it was
	that another trial didn't have cameras because of how well it
	was conducted. But then that begs the question, was it properly
	conducted because there were no cameras in the----
	Mr. Osterreicher. No, there were cameras, they just were
	closed circuit cameras.
	Mr. Labrador. Correct. Correct. Because they knew that they
	weren't--it wasn't a nationally televised circus that they were
	presiding over. So that's the question that--and I'm not taking
	a position. That's the conflict that I have, because I have
	seen how it has had a deleterious effect on some trials, and I
	think the justice was not served in some of those trials.
	Mr. Osterreicher. I think that, unfortunately, that
	atmosphere, in the O.J. trial, would have gone on with or
	without cameras. There was a whole lot more circus going on
	outside the courtroom when people--when both--all the parties
	went through the gauntlet of the media that was outside.
	I think, once again, it really shows that if the public--
	and, for example, the civil trial that followed regarding Mr.
	Simpson, again, there were cameras there. It was broadcast, and
	people got to watch that trial. There wasn't a whole lot of
	commenting going on, a whole lot of spin as to what happened or
	what you just saw.
	I think we need to give the public credit, just as we have
	for them listening to the oral arguments the other day in the
	Ninth Circuit to be able to see and hear for themselves what
	went on. And that will also----
	Mr. Labrador. And I don't disagree with that. I have no
	problem with the oral argument in the Ninth Circuit. I actually
	enjoyed listening to it myself.
	Do you believe that cameras should be allowed in all types
	of trial court proceedings, including criminal matters and
	preliminary matters addressed without a jury present?
	Mr. Osterreicher. I do, once again, within the discretion
	of the presiding judge.
	Mr. Labrador. How do you answer the concerns of those that
	suggest that broadcasting trials will have a chilling effect on
	whistleblowers and other possibly reluctant witnesses?
	Mr. Osterreicher. Once again, I would say this has been
	unfounded speculation for, you know, scores of years already.
	And there's really no proof of that.
	In the New York 10-year experiment, they did four different
	studies where they asked judges, parties, witnesses,
	prosecutors, lawyers, to fill out forms, and both the empirical
	and anecdotal data show exactly the opposite happened where
	cameras were in the courtroom.
	Mr. Labrador. Professor Geyh, do you believe that the
	grounds for disqualification are well-stated in the statute?
	Mr. Geyh. Pretty well, yeah. They are mostly uniform across
	the country at this point.
	Mr. Labrador. To what extent, if any, have you seen or
	learned of attorneys using these sections of law to shop for
	more favorable judges?
	Mr. Geyh. It happens, but it is a very risky gambit. In
	other words, I think the opposite is almost more likely the
	case. In other words, lawyers think long and hard before
	they're going to show up in front of a judge and point a finger
	in his face and say, you're too biassed to sit, because more
	likely than not, the judge will say no, and then they're going
	to have a case heard by a pissed off judge.
	Mr. Labrador. So, hypothetically, should a judge's
	political leaning or proclivity for or against a certain
	political position be sufficient ground for disqualification?
	Mr. Geyh. No.
	Mr. Labrador. Your testimony recounts the procedural
	hurdles and resulting issues with employing section 144. Can
	Congress amend 144 so that attorneys could conceivably use it
	as a method for moving--of moving for disqualification of a
	judge?
	Mr. Geyh. It could.
	Mr. Labrador. How?
	Mr. Geyh. How could they do it?
	Mr. Labrador. Yes.
	Mr. Geyh. I think that I would recommend----
	Mr. Labrador. Well, what changes do you suggest?
	Mr. Geyh. Well, I mean, I think I would borrow changes that
	are made in Alaska and Montana both have statutes, which
	essentially allows for substitution of judges. It's a one-time
	only--a one-time only arrangement in which a party can request
	a different judge without making the allegation that the judge
	was biassed. And it's judge shopping, but it's a one-shot deal.
	And the word--you know, the word that I received when I was
	working this issue was that it cut way back on disqualification
	for cause later, so--and the people who use it like it. The
	people that don't resent it. The people who don't use it, sort
	of, worry that it creates this judge shopping thing.
	But the people who use it, well, if that's one way to
	preserve public confidence in the courts by a one-shot only
	deal, it will work.
	Mr. Labrador. Thank you.
	I yield back my time.
	Mr. Issa. Did you mention also California has that----
	Mr. Geyh. California--about 20 jurisdictions do, and most
	of them are in the West. And most of the ones that use it are
	pretty--are okay with it. Not all, but--I think mean, I think
	I've heard some judges complain, but it's the ones that don't
	use it that find it difficult to fathom.
	Mr. Issa. Thank you.
	We now go to the gentleman from Florida, Mr. Deutch.
	Mr. Deutch. Thank you, Mr. Chairman. Mr. Chairman, I have
	very mixed feelings about today's hearing. On the one hand, I
	agree----
	Mr. Issa. About the hearing or the subject matter?
	Mr. Deutch. About the hearing and the subject matter. I do
	agree that there's a lot to be done and needs to be done to
	improve public access to the PACER service. As someone who has
	personally--has had the joy of muddling through PACER, I can
	see what a difference improvement would make, and I'm glad
	we're having the opportunity to talk about that.
	Similarly, revisions to Federal court policy on cameras are
	long overdue as well. Policies prohibiting cameras in the
	courtrooms impose severe limitations on the public's ability to
	observe court proceedings, interpreting laws that can impact
	the daily activities of every American. These restrictive
	broadcasting policies shroud the Supreme Court, and Federal
	court proceedings in secrecy and raise questions in the minds
	of the public on the administration of justice.
	You can walk into any State or Federal courtroom in America
	and see rows of benches or seats to accommodate public
	audiences interested in watching the legal proceedings. The
	U.S. Supreme Court also has public seating available to
	accommodate the lucky few courtroom seating for audiences
	recognizes and accommodates our Nation's long tradition of
	public court watching.
	The U.S. Supreme Court and our Federal courts hear and
	consider some of the most important issues facing our country.
	The proceedings and the decisions issued from the proceedings
	by the Supreme Court and Federal courts impact every facet of
	lives of Americans. The Supreme Court and the Federal courts
	need to recognize and adapt to these changes to permit the next
	generation of court watchers' access to proceedings on
	important legal issues. Such changes should include permitting
	television broadcasting.
	I've long supported the efforts of Mr. King, Mr. Nadler,
	and others in trying to open our Nation's courts to public
	access through cameras with appropriate protections for the
	parties and judicial discretion ever-sensitive matters. It's
	time that the Supreme Court and Federal court's practices
	change.
	But I cannot help feeling the twinge of regret at the focus
	this week on judicial transparency and ethics when the
	executive branch had such glaring problems with both.
	It doesn't take a constitutional law scholar to see that
	President Trump should not continue to have an ownership stake
	in the company that bears his name. His family's operation of
	the Trump Organization has already given foreign governments
	the opportunity to funnel improper payments through Trump
	hotels and golf courses and rental properties to curry favor
	with the Administration with no accountability to the American
	people.
	The complete inadequacy of President Trump's approach to
	conflicts begs us here, the House Judiciary Committee, to
	investigate ethics violations of the President and his
	nominees. His choice to violate the Constitution and complete--
	and his complete disregard for the well-established norms
	followed by previous Administrations expose our democracy to
	potential foreign influence and to the risk that he will use
	the power of his office to divert the public good for his own
	private benefit.
	These, Mr. Chairman, I would respectfully suggest, are the
	most pressing issues of transparency and ethics facing our
	country today.
	But, since executive transparency and ethics falls outside
	the jurisdiction of the Subcommittee on the Courts,
	Intellectual Property and the Internet, and since this
	Committee as a whole seems fiercely determined to ignore our
	executive oversight responsibilities in the face of
	unprecedented threats by the Trump administration, I suppose
	the judicial transparency is the most we can hope for, and I am
	grateful for our witnesses for sharing their thoughts on this
	important topic today.
	And with that, I yield back.
	Mr. Issa. The gentleman yields back.
	With that, we go to the gentleman from Texas, Mr. Poe.
	Mr. Poe. Thank you, Chairman.
	Thank you all for being here. During my other life, I was a
	proud judge in Texas for 22 years. I tried only felony cases,
	everything from stealing to killing and everything in between.
	And I was one of the first, if not the first, trial judge in
	Texas to allow cameras in the courtroom. We had a very
	structured system where we had to--it was very discreet. The
	jury never saw the camera.
	The camera did not film the jury, did not film child
	witnesses, sexual assault witnesses, or any other witness that
	the lawyers did not agree should be filmed. And those that
	opposed that system, you know, said the world would end if we
	had cameras in the courtroom, where all lawyers would play to
	the cameras, and all of those things that--and no offense to
	the academics, but the academics were opposed to it, because
	they had never been in a courtroom and never had tried a case
	in their life, from either point of view.
	But none of that happened. Lawyers don't play to the
	cameras. They play to the trier of fact, whether it's the court
	or the jury. And we tried very serious cases, including death
	penalty cases, and we allowed cameras to film those cases. And
	it worked, and it was great for not just the public, but for
	law students and their universities to see those cases tried
	from gavel to gavel.
	And I'm a great fan of that, because we have the greatest
	judicial system in the world for determining guilt or
	innocence. No, it's not perfect, but it is the absolute best
	that anybody has ever come up with. And why would we not want
	the world to see it? And the public is stuck with a 90-second
	sound bite on the news by what some reporter thinks took place
	in the courtroom that day, whether it's in a trial court or
	whether it's in the Supreme Court, or appellate court, or a
	Federal District Court, because they are not permitted to see
	what took place in that courtroom. And I think it is shameful
	that the public cannot see that.
	So I am absolutely in favor of cameras in the courtroom,
	cosponsoring with Mr. Connolly a bill that would allow cameras
	in the Supreme Court unless the court decides due process would
	be violated. There are other bills. Mr. Nadler has a bill
	that's even more progressive, if I could use that word--than--
	--
	Mr. Nadler. All right with me.
	Mr. Poe [continuing]. If it's all right with you, Mr.
	Nadler--than just the Supreme Court to let Federal courts be
	open. I think that the recent case of the--that was in Seattle,
	before a Federal court, would have been a perfect example of
	allowing that case to be heard with a camera in the courtroom
	and let the public see for themselves, without having to rely
	on the news media's 90-second sound bite, as to what took place
	in that courtroom.
	Mr. Swalwell. Would the gentleman yield?
	Mr. Poe. Yes.
	Mr. Swalwell. Judge, I appreciate your thoughts and
	personal experience on this. Could you share what you did in
	the courtroom to protect--if there was a sexual assault victim
	or a victim who had been threatened by the defense? Because I
	share a lot of your beliefs here, but was wondering what you
	did in your personal experience presiding over the court to
	protect those victims?
	Mr. Poe. If there was a--reclaiming my time.
	If there was a sexual assault victim, that victim was not
	televised in the courtroom. That was the rule. Sexual assault
	victims are never televised. And only the audio sometimes was
	allowed, but only by agreement of the prosecutor and the victim
	and, of course, the defense attorney. But the video was never
	televised in those cases.
	And child witnesses--the same was true with a child
	witness, never a child witness. Even if it was not a--the
	witness was not a victim, the child witness was never televised
	as well.
	And so we had certain rules. And the media abided by those
	rules. We never had a problem with the media violating the
	rules. They knew they--there were consequences. They might be
	in jail if they violated the rules. We never had a problem with
	it.
	So it worked out very well. We went through all of the so-
	called problems, and I was impressed, really, how smoothly all
	of that worked.
	Mr. Johnson of Georgia. Mr. Chairman, by unanimous consent
	I'd ask that the gentleman be granted an additional minute to
	conclude his remarks.
	Mr. Issa. Without objection.
	Mr. Poe. I thank the Chairman.
	Anyway, I will get to a question in a minute--in less than
	a minute.
	So it's just, I think, in this day and time, and has been
	said by many people, that we show the world that the most
	important court in the world, the Supreme Court of the United
	States, where you can go and sit--but you can't sit but 15
	minutes until they kick you out and bring in another bunch of
	folks. Because that's their rule over there. You can't watch
	the whole trial unless you're on this side of the bar--that
	they get to see everything that takes place in the Supreme
	Court. I think it would be of tremendous benefit to law
	students to see that and to lawyers, God bless them, let them
	see what takes place before the Supreme Court and, of course,
	the public as well.
	Mr. Osterreicher, would you agree with that--that scenario
	or not?
	Mr. Osterreicher. Oh, I would absolutely agree. I commend
	you for your progressive attitude. I'm admitted to the Supreme
	Court. And we have filed amicus briefs in a number of cases.
	I've appeared for oral arguments in those cases, and I just sit
	there and shake my head at the fact that there's only about 300
	people in that room that get to see what goes on in that
	courtroom. We're seeing people, you know, pay a lot of money
	for somebody to hold their place to get a spot in.
	But in terms of the snippets, that's the other thing that
	was always a contention. Well, you're only going to show a
	small part of the trial or a 15-second sound bite. The fact is
	that nowadays with live streaming, with the fact that not only
	live streaming on the internet, but by broadcast websites, by
	print websites, you can have the public be able to see the
	whole trial for themselves. Yes, we'll still be relegated to a
	small part on the news, but right now the public has no other
	opportunity to see what goes on in the courtroom other than
	that snippet where cameras are allowed. In this case, with live
	streaming, I think that will be available for everybody to
	either watch live or watch later.
	Mr. Poe. I thank the Chairman for the extra time.
	Mr. Issa. You can thank Mr. Johnson.
	Thank you. The gentleman yields back.
	We now go to the gentleman from New York, Mr. Jeffries.
	Mr. Jeffries. I thank the Chairman for yielding and for
	convening us here today.
	I thank the panel for the information that you've presented
	for your expertise, for your presence here today. This
	certainly, is an otherwise important topic, although I would
	suggest that the timing of this hearing is a bit perplexing.
	There is a swamp of corruption that's percolating at 1600
	Pennsylvania Avenue. The national security adviser has resigned
	in disgrace. Our national security has been placed in jeopardy
	as a result of the Trump administration continuing to play
	footsie with Vladimir Putin and the Russians. It's impossible
	to figure out where the Trump family business ends and the
	White House begins.
	The President himself is a living, breathing, conflict of
	interest. Seventeen different intelligence agencies have
	concluded that the Russians interfered with our election in
	order to help Donald Trump, and yet, we're here today talking
	about the PACER system. It just seems to me that there are more
	pressing issues related to the existential threat that this
	Administration presents to our democracy that we could be
	spending our time on.
	Now, we have a President who is in the illegitimacy
	business. He peddles illegitimacy with all the viciousness of a
	street corner dealer. He spent 5 years perpetrating the racist
	lie that Barrack Obama was not born in the United States of
	America, trying to undermine the legitimacy of a duly elected
	and re-elected President.
	He regularly attacks the legitimacy of the news media, the
	so-called fourth estate, which is essential to the
	constitutional fabric of our democracy. It's why we have a
	First Amendment. He has questioned the legitimacy of the
	intelligence agencies that now report to him. I wonder why? And
	he's also gone after the legitimacy of the judiciary.
	And so to the extent we've got the expertise available on
	this panel to deal with that issue, Professor Geyh, let me ask
	a question. You state that the survival of our courts depends
	upon the perceived legitimacy with the people in this country
	that they serve. Is that correct?
	Mr. Geyh. Yes.
	Mr. Jeffries. And is that largely because members of the
	judiciary are appointed and they're not elected and, therefore,
	they derive any respect and legitimacy that they have from the
	factors that you've set forth as it relates to their
	competence, integrity, and independence?
	Mr. Geyh. In part. I mean, part of it also is that every
	branch of government, really, does have the power to bring the
	other branches of government to their knees unless they believe
	in it. And to the extent we lose faith in the judiciary,
	there's no incentive not to abuse the other branches.
	And so part of it is that the judiciary is uniquely
	vulnerable, because they aren't elected and don't have that
	reservoir of legitimacy from the electorate. But the other part
	of it is that in the absence of that legitimacy, the President
	and the Congress, both, can essentially delegitimize the
	judiciary themselves.
	Mr. Jeffries. Donald Trump recently attacked a member of
	the Article III judiciary as a so-called judge. Is that
	correct?
	Mr. Geyh. Correct.
	Mr. Jeffries. What exactly is a so-called judge in your
	view?
	Mr. Geyh. The reason I look at that as different than just
	robust criticism, it is implied--it implies that this is not a
	judge at all. This is someone masquerading as a judge, who is
	undeserving of our respect. And when you combine that with the
	statement later that if they want our respect, they will simply
	do what we want them to do, that tells me that I don't want an
	independent branch of government. I want someone who will
	simply do my wishes. And that worries me. That to me,
	delegitimizes the judiciary as a separate and independent
	branch of government.
	Mr. Jeffries. It's amazing to me that we have a President
	who was helped by the Russians in terms of his election. The
	FBI director interfered in an unprecedented fashion. He
	benefited from the fake news industry throughout the election.
	He didn't win the popular vote. He lost the popular vote. A
	majority of the Americans didn't vote for him. They voted
	against him.
	The Administration is now shrouded in scandal, and he calls
	an Article III member of the judiciary a so-called judge. It's
	shameless, and this Committee needs to do something about these
	independent attacks on the judiciary.
	I yield back.
	Mr. Issa. If the gentleman would yield?
	Mr. Jeffries. Certainly.
	Mr. Issa. I'm going to associate myself with one part of
	what you just said, and that is that I don't believe we should
	ever use terms about judges that question their competence or
	integrity in--on this Committee unless we have a reason or
	anywhere else.
	I will say that perhaps we all should entertain not
	delegitimizing the other branches except where we have a
	specific claim and in that venue. But I do want to share my--
	appreciation that we do need to all raise the standard of how
	we deal with the court, how we refer to differences, and how we
	believe something should have been decided or how they believe
	it.
	I want to share that, because I think that--although I
	didn't necessarily associate with everything you said, I think
	it's important that this Committee, as we look at judicial
	responsibility, that we not disparage the court, which as you
	say, has generally done an extremely good job of delivering
	honest representation through the Federal court system.
	I thank you.
	Mr. Jeffries. I thank the Chairman for his remarks.
	Mr. Issa. Thank you.
	We now go to Mr. Biggs, who has been patiently waiting.
	And I want to apologize to you. I got a mixed signal, so
	you, actually, should have been before Mr. Poe, but I'm sure he
	appreciates your indulgence. Thank you.
	Mr. Biggs. Thanks, Mr. Chairman. And Mr. Poe can go before
	me any time he wants.
	And I appreciate the subject for the hearing today, and I
	appreciate those who are here on this panel testifying today. I
	appreciate you being here.
	You know, what I find interesting is that tensions,
	actually, between the three separate branches of our government
	are nothing new. Indeed they've been present in America since
	its inception. In fact, the very famous first case that laid
	the foundation for judicial review, Marbury versus Madison,
	arose specifically because of that tension between the
	executive branch and the judicial branch at that time.
	So I think it's interesting to be--hear folks be critical
	of the current executive because of comments that he made with
	regard to the separate coequal branch of government. But it's
	not new, these types of discussions, whether it be Andrew
	Jackson or Thomas Jefferson or FDR's idea of packing a court,
	increasing the number of justices so you can get a desired
	outcome. This kind of tension is not new. It is as old as the
	republic is.
	Mr. Swalwell. Would the gentleman yield?
	Mr. Biggs. I haven't finished my statement yet. I'd like to
	finish my statement.
	Mr. Swalwell. Would you yield after?
	Mr. Biggs. I'm not yielding yet, so hold your question.
	Additionally, when we look at the Article III branch of
	particularly the Federal judges here that we're talking about,
	many refer to them as being lifetime appointments, but in fact,
	that is only the de facto arrangement that has emerged and
	evolved over time. The actual language of Article III, section
	1 says that they will hold their offices during good behavior.
	And so, really, what we're talking about today, when I hear
	the testimony--and I appreciate it, because we're talking,
	really, in my opinion, about transparency and getting--having
	practiced law and having tried many cases, there is a certain
	mystery that kind of shrouds what goes on in the courts, and
	whether it's the broadcasting of court cases, whether it is the
	idea of making the PACER system more accessible to the public,
	whether we're talking about the ethical determination and
	processes within the courts themselves, I think those are
	really important issues to be sitting and discussing today.
	And that's why I'm grateful that you're here and grateful
	for the Chairman for organizing and conducting this Committee
	hearing today.
	So my question would be--for Professor Geyh is: As we look
	at this, what do you see are the real checks for the
	legislative branch on the judicial branch?
	Mr. Geyh. The checks include the 100-ton gun, as it's so-
	called, is impeachment. You do have a check. You control the
	judiciary's budget. You control the lower court's jurisdiction.
	You are enabled by virtue of the fact that you have the
	discretion to establish courts that implies a lot of regulatory
	authority over things like a disciplinary process. And so
	because you can, theoretically, disestablish courts, you can
	regulate them in between. And so--and so there are all kinds of
	powers that can be used.
	And, you know, getting back to the point you made before, I
	think it's an important point to recognize, that there's very
	little new under the sun, but that it's also true that we have
	a constitutional crises every now and then. That's not
	precedent for it being a good thing, it's just a precedent for
	it happening.
	And one of the great things about our system of democracy,
	I think, is that we have--we know when to hold them and when to
	fold them. We know when to stay our hand and when to get
	aggressive. And I think that having all of these powers used
	wisely has kept us going as long as it has.
	Mr. Biggs. Thank you. And I--thank you, Professor Geyh. And
	I agree with you that there are a series of checks that the
	legislative branch has, and I'm not sure that we exercise those
	too often. But I think the discussion today with regard to
	disciplinary process that needs to be put in place, and maybe
	we discuss that with the U.S. Supreme Court itself, I think
	that is integral to exercising the article empowers--the checks
	against the courts itself.
	Mr. Geyh. Fair point. Certainly, the inquiry is a fair one,
	yes.
	Mr. Biggs. So in line with that, when we start looking at
	transparency. And I think I'm just about out of time, but, Mr.
	Osterreicher, I was going to ask you, I want to know how we get
	access to the broadcast, and if that--in the 10-year study in
	New York, how was that made available?
	Because it seems to me that as you're broadcasting, you are
	creating a separate record that is going to be relevant to any
	kind of appellate procedures when you're videotaping and
	recording lower court proceedings.
	Mr. Osterreicher. Well, I think right now what we're
	seeing, at least at the Federal level during the pilots, is
	that they were operating the equipment rather than the media.
	So that becomes part of their----
	In the Ninth Circuit, they have their own YouTube site. I
	would assume that they are retaining those records as public
	records. During the 1987 to 1997 10-year experiment, it was
	prior to live streaming, and, really, the only time you would
	get anything was--was that broadcast unless you're actually
	recording videotape of it as well for later broadcasts.
	Mr. Biggs. Thank you, Mr. Chairman.
	Mr. Issa. I thank the gentleman.
	We now go to the also very patient, Mr. Swalwell of
	California.
	Mr. Swalwell. Thank you, Chairman, for this important
	hearing. And I will go back to the gentleman, Mr. Biggs, and
	ask--and I would yield to him, do you agree with Judge Gorsuch
	that it was demoralizing for President Trump to call the judge
	in Washington a so-called judge?
	Mr. Biggs. Mr. Chairman, I will take the time.
	Thank you so much for yielding time to me.
	On that specific issue, I don't know what--apparently,
	Judge Gorsuch was demoralized. I don't know who else might have
	been demoralized. I don't know anybody else who might have been
	demoralized when Members of Congress say this President's----
	Mr. Swalwell. I'll reclaim my time, and I'll ask again, do
	you believe that it's demoralizing to call a judge a so-called
	judge? And I'll yield to the gentleman.
	Mr. Biggs. Thank you. And hearkening back to my trial court
	days, I'll say that I'm not sure that's relevant to anything
	what I specifically think on this. But you're asking a really
	broad question, and so I will tell you that I think that there
	are probably some judges that are more sensitive than others.
	Mr. Swalwell. I'll reclaim my time.
	Mr. Biggs. Some may be demoralized and some may not be, I
	don't know.
	Mr. Swalwell. I was a trial court prosecutor and look
	forward to working with the gentleman on this issue, but I
	guess I'll ask Mr. Geyh, you said, ``We believe in the
	tripartite system of government that our Founders frame. We
	believe that the checks and balances that systems provide and
	the role that a strong separate and independent judiciary plays
	in keeping the executive and legislative branch in check.''
	So I guess I'd ask each person: Do you believe that calling
	a Federal District Court judge a so-called judge is respectful
	or disrespectful?
	Mr. Osterreicher?
	Mr. Osterreicher. I'm not sure that I'm going to be the one
	qualified for this. The only analogy I will draw is, this
	weekend I judged a moot court contest for law students, I was
	the presiding judge. I called myself the so-called judge only
	because I wasn't one. So I think using that reference to an
	actual judge is--certainly, calls into question why anyone
	would do that.
	Mr. Swalwell. Sure.
	Mr. Bruce, respectful or disrespectful?
	Mr. Bruce. I would consider it, again, for what the opinion
	of a computer scientist is worth, I would consider it
	disrespectful.
	Mr. Swalwell. Thank you.
	And Mr. Geyh?
	Mr. Geyh. My testimony would suggest yeah, I don't think
	it's respectful.
	Mr. Swalwell. And how about your home State judge, Judge
	Curiel, being referred to as not being able to be impartial
	because of being a Mexican American?
	Mr. Geyh. He's actually an alum of our law school as well.
	My concern there--I mean, to be clear, I'm less concerned about
	whether you're respectful than I am whether you are attacking
	the integrity of the court itself. And when you're implying
	that someone is incapable of rendering impartial justice
	because of the color of their skin, I think you've got trouble.
	That's more than disrespectful.
	I think, similarly, calling someone so-called, I mean, it's
	a snippet. It's a tweet, but it's what we have to work with.
	It's trouble. I'm not going to go so far as to say it's the end
	of the world, but it is indicative of a larger problem that
	attacks the legitimacy of the court, and that's what worries
	me.
	Mr. Swalwell. Thank you. I want to go to the purpose--one
	of the purposes of the hearing. And after practicing in trial
	courts for 7 years, I've given a lot of thought to the O.J.
	trial. I was 13-years-old as I watched that unfold, and just
	like most of America, could not believe that he was acquitted.
	But as time passed by and as I spent time in a courtroom and I
	watched the recent documentaries--Mr. Osterreicher, do you
	think that--and this is quite an existential question, I guess,
	but do you think had there been cameras on the streets for the
	police officers of Los Angeles in the years leading up to the
	O.J. trial, do you think that would have actually been more
	informative, and that would have held them to account rather
	than folks blaming the cameras in the courtroom as being the
	reason that he was acquitted? Do you understand the question?
	Mr. Osterreicher. I'm not quite sure I do.
	Mr. Swalwell. If the police officers had body cameras, and
	there was more transparency on those officers at that time, do
	you think that may have been more helpful and brought them into
	account? Because it seems to me that it wasn't the cameras in
	the courtroom that poisoned the jury, that it was really that
	there weren't cameras in the streets and that police officers
	in Los Angeles weren't being held accountable and their
	credibility was devastating.
	Mr. Osterreicher. I think it may, but the fact was that
	most officers that responded to that crime scene were
	detectives. And at least as we see it now, only patrol officers
	are wearing body cams. So I think even if the program was fully
	implemented, I highly doubt that those detectives would have be
	wearing body cams. But, certainly, it would have helped to see
	who went where and did what with evidence collection.
	Mr. Swalwell. Thank you.
	Mr. Issa. Would the gentleman yield?
	Mr. Swalwell. Yes.
	Mr. Issa. I want to engage in a quick colloquy, because--do
	you think that, perhaps, politicians have gotten in the habit
	of--that extends between each other and then, you know, flows
	over into Article III?
	You weren't here, but when I came to Congress, it was
	popular for many people to say that President Bush was an
	appointed not an elected President. Many people didn't come to
	his inauguration for that reason.
	Obviously, here, today, we had a Member on the dais cite
	delegitimizing President Trump because he didn't win a
	majority, and because of ``Russia'' getting him the election.
	Is it, perhaps, just a spillover, and is it something that all
	of us, executive branch and here in the House and Senate, need
	to get out of the habit of delegitimizing ourselves, and thus,
	spilling over into Article III? I just wonder if you thought
	about that.
	Mr. Swalwell. Reclaiming my time. And I appreciate the
	question.
	I guess the prosecutor in me says, just stick to the
	evidence. If you follow the evidence, you'll find the truth.
	I yield back.
	Mr. Issa. The gentleman ends with a good yield back.
	We now go to the gentlelady from California, Ms. Lofgren.
	Ms. Lofgren. Thank you, Mr. Chairman.
	I, actually, agree that it seems a little out of body to be
	discussing the PACER system when the national security adviser
	resigned and people are questioning what did the President know
	and when did he know it. But that's what we're doing here, and
	so that's what I would like to pursue, which is the PACER
	system.
	Professor Bruce, 10 years ago there was a pretty
	comprehensive privacy audit that academics performed on the
	PACER system, and they found that there were Social Security
	numbers included in the records. The audits were sent to the 31
	district courts, administrative office of the courts, judicial
	conference, and the like. However, it's my understanding that
	despite those findings, you still have Social Security numbers
	scattered throughout the PACER system.
	The technology of the systems is a little bit bulky, and
	I'm wondering if you have observations on what steps could be
	taken to redact sensitive information in the system or whether
	we might be well-advised to take up some of the private sector
	offers to take the data and maybe use better technology and as
	a condition of doing that, providing it for free to the public
	to redact sensitive information?
	Mr. Bruce. Let me make four points, actually, around the
	whole privacy issue. This is one of the places that has
	suffered the most from the inability to do comprehensive
	research across the entire system. If there were bulk access to
	the data, you would certainly have a lot better eyes on what
	was going on there.
	Secondly, just as with the problems of privacy that
	surround cameras in the courts, this is a problem that's
	unevenly distributed across the courts, so it's sort of--sort
	of hard to know where to look.
	We know from experience that a lot of this stuff can be
	very easily dealt with in software. It's been done in other
	jurisdictions. Mostly on something like Social Security
	numbers, that's going to be an easy problem to solve, because
	they are very easy to identify. There are harder problems and
	some that are completely insoluable. As for example, when you
	have a victim of domestic violence named as a 39-year-old
	school teacher from Gordon, Nebraska where there is maybe one
	39-year-old school teacher. That, you're never going to get rid
	of.
	In smaller jurisdictions in Canada and Australia, this has
	been done successfully with automation or more accurately
	automated support for some editorial redaction for a
	considerable period of time, at least 10 years or 15 in the
	case of Canada, shorter time in Australia. Should we take
	outside offers to do that? Yes, if they've got the technology,
	absolutely.
	Ms. Lofgren. Let me ask you something that's always
	bothered me. You can get some documents for free, but you have
	to create an account, and the account actually asks for your
	full name, your address, your phone number, your email address,
	your date of birth. It seems to me rather intrusive to have to
	provide all that information to get access to data that,
	really, the public should have.
	Mr. Bruce. That seems intrusive to me, too.
	Ms. Lofgren. I think--you know, what I'm interested in, Mr.
	Chairman, from this hearing is what steps we might take to
	recommend changes in this system.
	First, I don't think we're ever going to get the technology
	upgrades we want in the current system. I think we ought to
	aggressively and systematically pursue private sector options
	that would allow free access to this data that is not--that
	provides adequate privacy protections for individuals whose
	presence is revealed in the documents and that provides it on a
	basis that is not intrusive for the public that should have
	every right to see this information.
	Mr. Bruce. If I may, this circles back a bit to the
	question that Mr. Nadler asked me earlier. If you look at the
	2015 report from the AO on development of the NextGen system,
	it was actually a journal article that was published by the two
	senior designers, it's very clear from that that very, very
	little consideration was given to, really, any outside source
	of information beyond the judges who were--who were serving on
	the, you know, sort of, the media customer committee.
	And that, in fact, the AO completely dismissed the
	recommendations of Mider Corporation, which is a very well-
	respected consulting group for this kind of judicial
	administration.
	So I don't think I--I agree with you. I don't think we
	could expect a good deal of receptivity from the AO.
	Ms. Lofgren. Well, I would just say, I respected the judges
	for their insight into the law more than I respect the judges
	for their technology expertise.
	And I would yield back.
	Mr. Nadler. Mr. Chairman----
	Mr. Issa. Yes. For what purposes does the gentleman seek to
	be recognized?
	Mr. Nadler. Mr. Chairman, I ask unanimous consent that the
	gentlelady from Texas, who is a Member of the full Committee
	but not of the Subcommittee, be permitted to ask questions?
	Mr. Issa. Without objection, so ordered.
	The gentlelady from Texas is recognized.
	Ms. Jackson Lee. Let me thank the Ranking Member and the
	Chairman for their extended courtesies for a very important
	hearing.
	And thank you, gentlemen, for your testimony but also for
	your advocacy.
	I am going to follow a certain line of questioning, but let
	me give a question for a premise upon which it is based. I
	happen to be a member of the Bar. Sometimes we humorously ask
	which one, but I'm a member of the Bar and came through law
	school at the time that this was of great high honor.
	And the whole idea of the sanctity of the Constitution and
	the strength of the Constitution was very much enshrined, if
	you will, in our law school, but more importantly, it was a
	document that we held with the highest of esteem and thought as
	we graduated we were going to be advocates, the single sponsors
	of the value of the Constitution to the American public or to
	our immediate constituencies, and at that time, we were not
	elected persons but just those who had graduated from law
	school.
	With that in mind, Professor Geyh, I would like to go on a
	line of questioning that the other gentlemen made comment on,
	but I know that the issues that they are advocating I am very
	much familiar with, and I believe in their advocacy.
	The good news about what has happened over the last couple
	of weeks has been the increased, by the American public, of
	understanding civics, understanding their government,
	understanding what role their government plays. And I've
	enjoyed speaking about the three branches of government; the
	judiciary, the legislature, and the executive which by the
	Constitution three equal branches of government. I love saying
	that.
	We saw one episode with President Nixon in the Saturday
	night massacre and Elliot Richardson deciding to go a different
	way, then Attorney General of the United States. So because the
	American public's eyes are on all of us, I think it's important
	and as much as we can to be on our best behavior, but also to
	share with them some of the responsibilities that we have as a
	legislature, judiciary, and, of course, the executive.
	So I'd be interested--I'm starting, first, with Mr.
	Miller's comments that were made over the weekend, Steve
	Miller, who indicated the executive power is all one singular
	and without any possibility of oversight or questioning. I
	think many of us took a step back, step to the side, and were
	either aghast or were trying to struggle with the Constitution
	or court precedent to find out what the basis of that was.
	I'd appreciate your comment on that. And also appreciate
	the fact that the judiciary, likewise, does not have the
	authority to reach beyond its boundaries, to rule in a way that
	would skew the rights of the American people. They have--they
	interpret the law. And so I would love for you to, with this
	whole concept of transparency but also the judicial ethics as
	well, give the boundaries of the judiciary. And I'm, obviously,
	speaking about the Federal judiciary.
	And then I'd appreciate as well that if American people--
	the American people, probably have not paid attention to the
	judiciary except for--let me not suggest that they're not
	engaged, but I was a judge in the municipal court, so except
	for their coming before municipal judges dealing with their
	citations or they may be in court for their own personal
	matters, now we've open the door for them to appreciate the
	value of this Nation.
	What happens to their attitude about the courts and judges
	if--and I'm sure some of my colleagues raised this, if so-
	called judges, if he's a Mexican judge, so he has to be
	biassed? We are held together in this country by our adherence
	to the principles of our underpinning documents.
	I yield to you, Mr. Geyh.
	Mr. Geyh. This is a teaching moment. I think it--it is--the
	events, to me, had been troubling, but they offer an
	opportunity to talk to be people the way you describe. I think
	it's important to understand that--you know, earlier--earlier,
	I think it was Mr. Biggs who spoke, one spoke in terms of
	Marbury versus Madison being the first point at which judicial
	review was brought into the conversation.
	But, in fact, it predated the formation of the
	Constitution. The judiciary has long been understood to have
	these powers to hold the other branches in check through the
	use of judicial review, through, you know, independent
	assessment of the law.
	And when a member of the Administration stands up and says
	what the President says goes and implies that its power is
	absolute, I think it raises a flare for me, because it suggests
	that, first of all, that he doesn't understand the way the
	system works and that he is counting on people he is talking to
	not understanding the way the system works, and not
	understanding the judicial review is not just a bunch of people
	having second opinions.
	They have a different role to play that--you know,
	throughout this conversation about whether the judges
	overreached in this scenario, I never once heard any discussion
	of the actual constitutional issues that were in play. This was
	all about judges overplaying their hand simply because they
	disagreed with the President. And I think this is a moment for
	all us to stop and say this is how the system works in very
	simple ways.
	And honorable and men and women of integrity have a right
	to--not a right--have a duty to look at the law and decide how
	it goes. And you, in this room, have a right to criticize those
	decisions and say it is wrong during part of this public
	dialogue. But that stops short of saying: Because I disagree
	with you, you are illegitimate. Because I disagree with, you
	are someone who should be ignored or marginalized. And that is
	what worries me, that line between vigorous disagreement and
	delegitimization.
	Ms. Jackson Lee. Anyone else want to comment? Any anyone
	else?
	All right. Let me thank--let me thank you very much. And
	might I, Mr. Chairman, just finish on this note. This is the
	body of people that will be dealing with these issues for a
	period of time, and I think this hearing, and to the Ranking
	Member, is a potent hearing, and I hope that as we go forward,
	we will understand that protecting these three branches of
	government is a bipartisan effort and we should strongly do so,
	as well as utilize our investigatory powers in ensuring the
	integrity of all aspects of government. And I hope we will be
	doing that for the American people.
	I yield back. Thank you.
	Mr. Issa. I thank the gentlelady. I thank you for coming
	over and participating today. It was a welcome addition. I am
	going to try to close. Hopefully, I won't open any new wounds
	as I do it.
	But, Professor Geyh, at the end, I detected something that
	I would like to not rebut but to add on to. You know, you
	talked about the executive branch feeling like, in national
	security, they had such broad powers as to not be questioned,
	and that is a debate that is not new. I have never seen a
	President who believed the War Powers Act actually affected
	them. The moment they get sworn in, it seems like that--you
	know, even if they were a former Member of this body, they move
	beyond that, so that is not uncommon.
	But the court, the Ninth Circuit, does seem to have taken
	what it has been used to, and I live in the Ninth Circuit. It
	has been used to questioning the process of--in civil rights
	cases, of what intent is. So if--if somebody--if somebody's
	motives are not pure, then the law, even if perfectly written,
	is invalid in the Ninth Circuit. That is--they haven't been
	sustained very often when going to the Supreme Court, but they
	have had that view.
	And in this case, it appears to me, as a bit of a layperson
	far removed, that they are doing the same thing in that they
	are determining that the President's statements and/or motives,
	in fact, are justification to overturn his ban not on the
	letter of it, not on the statute but, in fact, on his motives.
	Would you agree that they have--they have taken that
	liberty, whether it is theirs or not, but they certainly
	indicated it.
	Mr. Geyh. I have no opinion on that, but----
	Mr. Issa. You don't have an opinion on what the Ninth
	Circuit did?
	Mr. Geyh. I don't--I have not studied the opinion in detail
	sufficient to draw that conclusion.
	Mr. Issa. You heard their words.
	Mr. Geyh. But I don't disagree with you. I just have--I
	don't disagree with you. I am not challenging it. I am simply
	saying that I don't----
	Mr. Issa. Did either of you listen to the court review?
	Because I mean, I certainly heard it pretty loud and clear that
	they believe that they can judge the intent of the President in
	crafting something as invalidating it, regardless of the words.
	And I know that is not your subject expertise.
	Mr. Osterreicher. If I may. I mean, at least in my
	listening to it, I think the court was trying to get evidence.
	I think they were listening to the government's side saying,
	no, this wasn't our intent, and then they looked toward the
	President's statements as being evidence of some intent.
	Whether or not that comes into play, as you said, in terms of
	the law versus the facts, obviously, we will see.
	Mr. Issa. And I do look forward to this, the case going to
	the court on--to the Supreme Court on that. Yes.
	Mr. Nadler. Mr. Chairman, strike the last word. I would
	simply point out, first of all, the court, the--neither Judge
	Robart nor the Ninth Circuit decided the case. They were ruling
	on it on a temporary restraining order in which you don't go
	through all the evidence and make determinations, but you do
	say, well, who has a likelihood of prevailing on the merits,
	and as a matter of equity, who, in balancing the equities, who
	would be harmed if we let it stand or not stand. On that basis,
	the Ninth Circuit, I think, had ample reason to rule as it did
	because there had been no evidence showing harm if they
	overthrew it and plenty of evidence, obviously, the plaintiffs
	would be harmed if they didn't. I shouldn't say overthrown.
	Stay it.
	And in terms of the constitutionality that you were
	referring to, they didn't make a finding. They couldn't until
	after the hearing, but they said there is a--not a
	possibility--likelihood of success on the merits, and they did
	look to intent there, which at this stage of the game they
	should.
	Mr. Issa. Well, and I am not in a position to agree or
	disagree. I was asking the question because the Ninth Circuit
	does look to intent. They have even overturned--they have
	overturned laws that were written in which a witness who came
	before the body that wrote the law, city council, the witness
	said something which they said went to intent. In other words,
	a tainted witness thus taints the decision of it. And it is--in
	looking at city council's laws, that may seem fairly benign,
	but in looking to a President who is entitled to, essentially,
	a right to privacy of his thoughts in deliberation and
	executive power, it will be interesting to see it before the
	Ninth Circuit.
	I would like to quickly close--and I appreciate your input
	on that--and try to summarize what I think I have heard here
	today.
	And, Mr. Osterreicher--I apologize. I have not gotten your
	name right once, but I have noticed it has been said several
	different ways.
	Mr. Osterreicher. Just don't call me late for dinner.
	Mr. Issa. I think--I think the one thing, without calling
	you late for dinner, is that you have got agreement that there
	has been no showing that convinced anyone here at the dais that
	there is a reason not to video capture appellate activities
	broadly, which would potentially include the Supreme Court, but
	clearly would include all of the circuits. So I think you
	walked away today making your case for that. Obviously, I think
	it is fair to say there was less agreement as we got down to
	witnesses and victims and so on.
	Professor Bruce, I think you made a compelling case. The
	only thing that I didn't hear was an oddity that is unique to
	this Member, and that is, that we have required the
	Administration, under the DATA Act, to put all information in
	machine-readable format. And one of the interesting things
	about PACER is, even if they handed you all the information, in
	order to make it usable to a broad public, it would have to be
	converted into machine readable with metadata attached. Isn't
	that true?
	Mr. Bruce. That is true. And frankly, I chose not to
	approach that issue today because I thought it was a bridge too
	far, but it is absolutely the case that it would need to be put
	into XML to be maximally used.
	Mr. Issa. Well, and I waited till the end to cover this
	because it is my intent to offer legislation that expands the
	DATA Act, which Senator Warner and I were the original authors
	of, to include Article III with the recognition that they have
	broad authority that does not happen to be one that is
	exclusive to them.
	And so I will be offering that again with Senator Warner as
	a Senate companion for just that reason, that the bridge too
	far is, no matter what they do, the information they have is
	not currently as valuable as it should be.
	Mr. Bruce. That's correct. Thank you.
	Mr. Issa. And I think when it came to the questions of
	integrity of the court, although it was--there was a
	considerable discussion about the so-called judge comment, I
	think you made a compelling case here that it is a fragile
	court that even a 140-character statement by one individual,
	who happens to be the President of the United States, can have
	an effect on a court as can a question of whether this 80-year-
	old judge is competent, as is this judge biased, as is does the
	court system hold its own accountable, as is the question of
	whether or not there is a recognition of the financial holdings
	in some format of the--of members of the court as there are in
	the other two branches.
	And so I think you made a good case that we will follow up
	on that we need to work with the court and/or work with our
	constitutional powers to add those so that no one can second-
	guess the court in those areas, which I think is a particularly
	important area, and I think you made a good case on it.
	I would recognize Mr. Nadler if he had any other closing
	comments.
	Mr. Nadler. No.
	Mr. Issa. Hearing none, I want to thank all of you. We will
	keep the record open for 5 days. If you have additional
	comments or thoughts afterwards, we would accept them into the
	record.
	And with that, we stand adjourned.
	[Whereupon, at 12:18 p.m., the Subcommittee was adjourned.]

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