[House Hearing, 116 Congress] [From the U.S. Government Publishing Office] THE FEDERAL JUDICIARY IN THE 21ST CENTURY: ENSURING THE PUBLIC'S RIGHT OF ACCESS TO THE COURTS ======================================================================= HEARING BEFORE THE SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET OF THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED SIXTEENTH CONGRESS FIRST SESSION __________ SEPTEMBER 26, 2019 __________ Serial No. 116-55 __________ Printed for the use of the Committee on the Judiciary [GRAPHIC NOT AVAILABLE IN TIFF FORMAT] Available http://judiciary.house.gov or www.govinfo.gov __________ U.S. GOVERNMENT PUBLISHING OFFICE 42-327 PDF WASHINGTON : 2022 ----------------------------------------------------------------------------------- COMMITTEE ON THE JUDICIARY JERROLD NADLER, New York, Chair MARY GAY SCANLON, Pennsylvania, Vice-Chair ZOE LOFGREN, California DOUG COLLINS, Georgia, SHEILA JACKSON LEE, Texas Ranking Member STEVE COHEN, Tennessee F. JAMES SENSENBRENNER, Jr. HENRY C. ``HANK'' JOHNSON, Jr., Wisconsin Georgia STEVE CHABOT, Ohio THEODORE E. DEUTCH, Florida LOUIE GOHMERT, Texas KAREN BASS, California JIM JORDAN, Ohio CEDRIC L. RICHMOND, Louisiana KEN BUCK, Colorado HAKEEM S. JEFFRIES, New York JOHN RATCLIFFE, Texas DAVID N. CICILLINE, Rhode Island MARTHA ROBY, Alabama ERIC SWALWELL, California MATT GAETZ, Florida TED LIEU, California MIKE JOHNSON, Louisiana JAMIE RASKIN, Maryland ANDY BIGGS, Arizona PRAMILA JAYAPAL, Washington TOM McCLINTOCK, California VAL BUTLER DEMINGS, Florida DEBBIE LESKO, Arizona J. LUIS CORREA, California GUY RESCHENTHALER, Pennsylvania SYLVIA R. GARCIA, Texas BEN CLINE, Virginia JOE NEGUSE, Colorado KELLY ARMSTRONG, North Dakota LUCY McBATH, Georgia W. GREGORY STEUBE, Florida GREG STANTON, Arizona MADELEINE DEAN, Pennsylvania DEBBIE MUCARSEL-POWELL, Florida VERONICA ESCOBAR, Texas Perry Apelbaum, Majority Staff Director & Chief Counsel Brendan Belair, Minority Staff Director ------ SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET HENRY C. ``HANK'' JOHNSON, Jr., Georgia, Chair LOU CORREA, California, Vice-Chair THEODORE E. DEUTCH, Florida MARTHA ROBY, Alabama, CEDRIC RICHMOND, Louisiana Ranking Member HAKEEM JEFFRIES, New York STEVE CHABOT, Ohio TED LIEU, California JIM JORDAN, Ohio GREG STANTON, Arizona JOHN RATCLIFFE, Texas ZOE LOFGREN, California MATT GAETZ, Florida STEVE COHEN, Tennessee MIKE JOHNSON, Louisiana KAREN BASS, California ANDY BIGGS, Arizona ERIC SWALWELL, California GUY RESCHENTHALER, Pennsylvania BEN CLINE, Virginia Jamie Simpson, Chief Counsel Thomas Stoll, Minority Chief Counsel C O N T E N T S ---------- SEPTEMBER 26, 2019 OPENING STATEMENTS PAGE The Honorable Henry C. ``Hank'' Johnson, Jr., a Representative in the Congress from the State of Georgia, and Chairman of the Subcommittee on Courts, Intellectual Property, and the Internet 1 The Honorable Martha Roby, a Representative in the Congress from the State of Alabama, and Ranking Member of the Subcommittee on Courts, Intellectual Property, and the Internet................ 3 The Honorable Jerrold Nadler, a Representative in the Congress from the State of New York, and Chairman of the Committee on the Judiciary.................................................. 4 The Honorable Doug Collins, a Representative in the Congress from the State of Georgia, and Ranking Member of the Committee on the Judiciary.................................................. 5 WITNESSES PANEL I The Honorable Audrey G. Fleissig, U.S. District Judge, Eastern District of Missouri Oral Testimony............................................... 8 Prepared Statement........................................... 10 The Honorable Richard W. Story, U.S. District Judge, Northern District of Georgia Oral Testimony............................................... 32 Prepared Statement........................................... 34 PANEL II Ms. Lisa Girion, Reporter, Thomson Reuters Corporation and Mr. Daniel R. Levine, Legal Correspondent, Thomson Reuters Corporation Oral Testimony............................................... 58 Prepared Statement......................................60Mr. Daniel R. Levine, Legal Correspondent, Thomson Reuters Corporation Oral Testimony............................................... 00 Prepared Statement..........................................00 deg. Ms. Jodi M. Schebel, Co-Managing Partner, Bowman and Brooke, LLP Oral Testimony............................................... 92 Prepared Statement........................................... 94 Mr. Seamus Hughes, Deputy Director of the Program on Extremism, George Washington University Oral Testimony............................................... 103 Prepared Statement........................................... 105 Ms. Sunny Hostin, Co-Host, The View, ABC Television Studios Oral Testimony............................................... 112 Prepared Statement........................................... 114 Mr. Jeffrey Toobin, Staff Writer, The New Yorker Oral Testimony............................................... 121 Prepared Statement........................................... 123 APPENDIX A statement for the record from the Honorable Steve Leben, Judge, Kansas Court of Appeals........................................ 137 A letter for the record from the Honorable Bridget Mary McCormack, Chief Justice, Michigan Supreme Court............... 144 A letter for the record from the Honorable Maureen O'Conner, Chief Justice, Supreme Court of Ohio........................... 146 A letter for the record from the Honorable Elizabeth D. Walker, Chief Justice Supreme Court of Appeals, West Virginia.......... 152 A statement for the record from the National Press Photographers Association.................................................... 153 A letter for the record from Americans for Prosperity............ 172 A statement for the record from the American Association of Law Libraries...................................................... 174 A letter for the record from organizations in support of Electronic Court Records Reform Act of 2019.................... 177 A letter for the record from Elizabeth Chamblee Burch, University of Georgia School of Law; Martina S. Horner, University of Connecticut School of Law; and Adam Zimmerman, Loyola Law School......................................................... 178 A letter for the record from the Reporter Committee for Freedom of the Press................................................... 181 A letter for the record from the Electronic Privacy Information Center......................................................... 184 THE FEDERAL JUDICIARY IN THE 21ST CENTURY: ENSURING THE PUBLIC'S RIGHT OF ACCESS TO THE COURTS ---------- THURSDAY, SEPTEMBER 26, 2019 House of Representatives Subcommittee on Courts, Intellectual Property, and the Internet Committee on the Judiciary Washington, DC. The subcommittee met, pursuant to call, at 2:05 p.m., in Room 2141, Rayburn Office Building, Hon. Henry C. ``Hank'' Johnson, Jr. [chairman of the subcommittee] presiding. Present: Representatives Johnson of Georgia, Nadler, Stanton, Roby, Collins, Chabot, Jordan, Biggs, Reschenthaler, and Cline. Staff present: David Greengrass, Senior Counsel; John Doty, Senior Advisor; Moh Sharma, Member Services and Outreach Advisor; Madeline Strasser, Chief Clerk; Jamie Simpson, Chief Counsel, Courts & IP Subcommittee; Danielle Johnson, Counsel, Courts & IP Subcommittee; Matthew Robinson, Counsel, Courts & IP Subcommittee; Rosalind Jackson, Professional Staff Member, Courts & IP Subcommittee; Thomas Stoll, Minority Chief Counsel; Dan Ashworth, Minority Counsel; and Andrea Woodard, Minority Professional Staff Member. Mr. Johnson of Georgia [presiding]. Welcome to the Subcommittee's second hearing in our ongoing examination of the state of the Federal Judiciary in the 21st century. Our first hearing focused on judicial ethics and accountability. Today's hearing shifts our oversight to an equally vital topic, the public's right of access to the business of the courts, a right centuries older than our republic and fundamental to our conception of justice in a democratic society. To paraphrase an old judicial aphorism, it is not enough that justice is done. The public must all see justice being done. That is why images like the one that is on the screen, the long lines trying to get into the United States Supreme Court, are so troubling. This is the only way Americans can watch the Court's oral arguments. Lines start forming days before high-profile arguments. Often they are filled with people who have paid $50 an hour to save someone a spot. Most of the people who make it inside are quickly rotated through a small courtroom, only able to hear a few minutes of the hearing. These scenes are deeply disturbing to the ideal of an open and transparent judiciary. You can't make it out in this photo, but the words, ``Equal Justice Under The Law,'' are inscribed above the doors of the Court. When the public see those words, they should see a message of welcome. I worry that instead they see a ``keep out'' sign. I understand that judges here today represent the Judicial Conference and cannot speak for the Supreme Court, but I do want to make sure we are all aware that it is images like this one that frame the debate. This photo is also a reminder that today the question of whether our Federal courts are truly open is not answered by looking at whether the physical doors of our courtrooms stand ajar. Instead, the public's right of access must keep pace with the fact that we are entering the 3rd decade of the 21st century. That means that it is not enough to simply have case law recognizing the public's right of access to court records. There is a need to make sure that judges are scrutinizing even an uncontested motion to file court records under seal, especially when those records contain information that could be crucial to public health and safety. It means that the public shouldn't have to pay to see court filings. The same goes for the public's right of access to court hearings. We need only look to State judiciaries to see what open justice means today. Nearly every State court system allows cameras in their hearing rooms, and many of them have livestreamed their proceedings for years. As the chief Justice of the Ohio Supreme Court writes, ``Livestreaming increases trust in judges, in our decisions, and in the rule of law.'' Their experiences undermine some common counter-arguments about having cameras in courtrooms with the chief justice of the Michigan Supreme Court writing, ``Some say TV cameras distract participants. In the courtroom, cameras are simply a fixture of proceedings, no more distracting than a podium or a chair, but just as necessary.'' Before I yield to the Ranking Member, I need to recognize that our committee has a long bipartisan history of working to improve public access to our courts. Both Chairman Nadler and my colleague, Mr. Chabot, are long-time advocates of putting cameras in Federal courtrooms, as are Ms. Lofgren and Mr. Deutch. And, of course, one of the reasons we are having this hearing is because Ranking Member Collins' efforts to modernize access to court records and make it free has been important work. I am glad to be a co-sponsor of his and Mr. Quigley's bill. Chief Justice Burger once traced the unbroken, uncontradicted history of public access to the courts that he noted was supported by reasons as valid today as centuries past. Today's hearing is about making sure that history remains unbroken by collaboratively and constructively resolving any contradictions in our shared responsibility to open justice in both principle and practice. To our witnesses, I look forward to hearing your testimony on these important topics. I also hope you will be willing to work with us after this hearing. There is a lot that we can accomplish if we work together. Thank you, and I look forward to your testimony. And it is now my pleasure to recognize the Ranking Member of the Subcommittee, the gentlewoman from Alabama, Mrs. Roby, for her opening statement. Mrs. Roby. Thank you, Chairman Johnson, and thank you to the witnesses from both panels for being here today to share their experiences with the Federal court system. Our two panels testifying today will cover many different topics, including the Public Access to Court Electronic Records system, also known as PACER, consolidating the Case Management/Electronic Filing system, audio and visual recordings in district and appellate courts, and changes to the standards for sealing court filings. While some of these ideas are worth exploring further, I have significant concerns that some of the proposals will have a negative impact on judicial proceedings and the parties involved, especially cameras in courtrooms. I am particularly interested in hearing from our two distinguished district court judges here representing the Judicial Conference about their views on these ideas. So I really want to thank you both for being here and taking time out of your schedules to be with us. The PACER system is currently widely viewed as outdated and difficult to use. If you ask almost any attorney or law student if they have used PACER, they will respond negatively and let you know how bad the system is. And while we should certainly be looking at ways to improve the system and modernize it, we must not do it in a way that deprives our court system of very much-needed funding. I look forward to hearing from our witnesses on different proposals for how we can improve PACER to work for everyone. The Case Management/Electronic Filing system has been widely viewed as a success and has made it easier to electronically file and manage cases. However, every district and appellate court system operates their own system and much of this information can be fragmented. Hopefully we can hear today how this successful system can be improved upon and consolidated. I have strong concerns, and I am opposed, to placing cameras within courtrooms. Our Federal courts here have important cases that can deal with highly-sensitive issues, national security concerns, and very heinous crimes. Having live broadcasts at these proceedings can place witnesses in jeopardy, subject jurors to intimidation, cause disruptions, and cast doubt over the outcomes of a case, amongst many other potential problems. Live broadcasts are simply something I am unable to support. I would like to hear from our witnesses about the feasibility of doing same-day audio or whether enough safeguards could be established to address the concerns that I have already outlined. Finally, we will also hear from our witnesses about the standards for sealing documents and filings. This is a complex issue that highlights the differences in standards amongst the circuits and balancing the needs of the public and the rights of the parties involved. It is important that the public has access to as much information as possible, but I am very hesitant to restrict or second guess a judge's discretion to review motions to seal documents or settlements. I look forward to learning more about this topic and the difference in standards across our country. I am a strong believer in our Federal court system and ensuring the public's access to justice. So while we must always make sure our courts are working effectively and efficiently, I have some concerns with these issues before us today. So I, again, want to thank our witnesses for being with us and hearing more about these proposals. And with that, Mr. Chairman, I yield back. Mr. Johnson of Georgia. Thank you. I am now pleased to recognize the Chairman of the Full Committee, the gentleman from New York, Mr. Nadler, for his opening statement. Chairman Nadler. Thank you, Mr. Chairman, and thank you for holding this important hearing on the public's access to the courts. No one in this room takes for granted the complexity and importance of the Federal judiciary's job of administering justice and doing so fairly. That role is fundamental, but it is undermined when the public cannot see the judiciary's work being done. Every day Federal appellate judges across the country review complex cases of public interest, and each term the Supreme Court examines important constitutional and Federal issues that have a long-lasting impact on society. Despite these courts' influence, only a few Federal courts have been in step with modern standards of access and have allowed visual media coverage or provided real-time audio streaming. And at the Supreme Court, the public must wait until the end of the week to hear recordings of oral arguments, with some exceptions. This means that most of the public rarely has the ability to see the courts' public deliberations as they happen in real time. Many people do not live near or even in the same State as their circuit court of appeals. They find it difficult to travel to Washington and stand outside for hours or even days or to pay someone to stand in line for them to witness history at the Supreme Court. The public's right of access is fundamental, and it is not adequately protected when our courts fall far behind modern standards of media access. The realization of this right should not be left to the lucky or the wealthy or the well-connected few. In most Federal courtrooms, real-time access to court proceedings is no more available today than it was in the 19th century. The ability to stream from almost anyplace and on almost any device has also become so pervasive and inexpensive that this is the immediacy that the public has come to reasonably expect from their government. The Federal judiciary's progress has been slow paced in this area, and our Federal courts have fallen behind their peers in the States and even courts abroad. Most State court systems allow livestream video of their proceedings. So do the supreme courts of the United Kingdom, Canada, and Australia. It is surprising and disappointing that our courts have been so willing to keep their doors closed and have so grudgingly allowed them to be open even a crack to the public. Live video ought to be the rule, tempered by judicial discretion, due process, and privacy concerns. Many of my colleagues and I have long been advocates for increasing access to the courts through media coverage and real-time streaming of proceedings. On this front, last Congress, I introduced the Eyes on the Court Act, which would establish a presumption of audiovisual access to the Supreme Court and circuit court proceedings, but leave judges with the discretion to turn the cameras off when the interest of justice requires it. I anticipate reintroducing this legislation, and I look forward to hearing the views of our witnesses on the bill and on the issue of cameras in the courtroom more generally. Of course, accessibility and openness entail more than cameras and audio. It is critical that the public has a meaningful and modernized way to access court records, and I appreciate the leadership of Ranking Member Collins on efforts to reform the PACER system. I also look forward to discussing the disturbing trend of routine sealed court filings that conceal vital health and safety information from the public. I have been concerned for many years about secret settlements and protective orders that companies obtain to prevent the public from learning important information regarding the health and safety effects of their products. That is why I plan to reintroduce the Sunshine in Litigation Act, which would require that information relating to public health and safety and protective orders or settlement agreements be made public, unless a court makes a finding that there is a specific and substantial interest in keeping such information secret that outweighs the public interest. As two of our witnesses have documented, the problem of shielding critical health and safety information from the public extends also to sealed court filings, and I appreciate their work in bringing this issue to light. Transparency is vital to the integrity of the judiciary, and it is vital to maintaining the public's trust in our courts, particularly as attacks on judicial independence and the rule of law have become more common. I am pleased that we are examining these issues today, and I am optimistic that today's hearing will lead to a productive dialogue about how the judiciary can best reach the public in a way that reflects modern standards and makes sense in this 21st century environment. I know that Chairman Johnson sees today's hearing as part of an ongoing conversation and collaboration with our Federal courts, and so do I. I look forward to hearing from all our witnesses on these important topics, and I yield back the balance of my time. Mr. Johnson of Georgia. Thank you. It is now my pleasure to recognize the distinguished Ranking Member of the Full Committee, the gentleman from Georgia, Mr. Collins, for his opening statement. Mr. Collins. Thank you, my friend from Georgia. And, Mr. Chairman, I appreciate that. Before I start, I want to take just a moment, especially this first panel, our two judges, Judge Fleissig, and also my dear friend and mentor in many ways, Judge Story. Your contributions to the bench are amazing, and I appreciate both getting to know you, but watching literal history, Judge Story, in your life as you have lived that out in our circuit, in our district. Our district in Georgia is definitely the better for your service, and I appreciate that and your insight here as well as we go forward. And I think many times we overlook the work of our judges, and, you know. And this is a committee in which we deal with it all the time, but it is also something which we also can celebrate. We may disagree on the outcome, but the judges are there to actually make sure that the folks in the world can look at us and see this is the most fair and equitable process that we can go through, and I want to thank both of you for being here. Our second panel is outstanding as well. I have watched many of their commentaries on TV, and looking forward to their comments here as we go forward to do this. And I want to thank the chairman and ranking member and, of course, the full chairman for being here and looking at this here. This is definitely, as you can tell by looking around, this is only for the true believers. This hearing is the Judiciary Committee at its purest, actually dealing with the judiciary and looking at what we deal with, and that is a good thing. And this subcommittee is valuable to that, and it is a way to promote public interest in judicial proceedings and protect parties' rights. You know, the Federal Judiciary has always served its vital role by ensuring Americans have access to the fair and impartial system of justice. And for centuries, our Federal judicial system has been the pillar of our democracy because it has held itself to the highest of legal standards. But in the area of employing technology, well, maybe we need to catch up a little bit. For example, let's look at the Federal court's outdated electronic records system, PACER. States like my home State of Georgia have electronic records systems that enable easy searches and free access to records, yet the Federal court records are very difficult to search through, and the system charges users to view each page. While State courts and law firms are in sports cars, the Federal courts are riding bicycles, and we need to make a change. The need to improve access to electronic Federal court records has long been a concern of mine. That is why I reintroduced the Electronic Court Records Reform Act to bring the Federal courts' electronic records system into the 21st century, and I look forward to considering and passing this legislation soon. Transparency is important, but we must be careful not to create more problems than we solve. And I have significant concerns with proposals to put cameras into Federal courts because I have seen their impact here in Congress. Federal courts hear and adjudicate politically-charged and impactful cases every day. The addition of cameras to such contentious proceedings is likely to result in less trust and greater politicization of our courts. All we need to do is look at their effect on this Congress to see what a distractions and obstacles at times it can be. Finally, I also have significant concerns with the effort to limit the discussion afforded district court judges to seal filings in instances where the disclosure of information would unnecessarily harm a party. Under current law, Federal judges have discretion to review requests to seal records and balance the public's First Amendment right to access against the party's right to protect their confidential information. It sort of amazing to me here sort of the double standard we use here. Many times my friends across the aisle want discretion for judges in sentencing, but they don't want to have discretion in judges for sealing cases when they are the closest to the cases to start with. I think we just need to find a common ground here, and we can do that. And with these two fine judges, I am sure they will have discussions on that. Litigants in courts use tools, such as sealings, filings, and protective orders, to protect intellectual property, the personal information of individuals, and, as such, their financial and medical records. Sealed filings and protective orders also expedite litigation by enabling parties to share sensitive documents relevant to the case without the risk of inadvertent disclosure or misappropriation. As we strive for transparency in our Federal court system, I must insist that we respect litigants' rights and confidential information. In closing, I am thankful we are holding this hearing, and I am cautiously optimistic it will result in proposals that ensure transparencies and accountabilities without unintended consequences. We all have our ideas, and that is the place for this committee. And handling those ideas and finding good results is something I think we can all come together with. And with that, Mr. Chairman, I yield back. Mr. Johnson of Georgia. Thank you, Mr. Collins. I will now introduce the witnesses for the first panel. The Honorable Audrey Fleissig is a U.S. District Judge for the Eastern District of Missouri, and is the Chair of the Judicial Conference's Committee on Court Administration and Case Management. Before becoming a District Judge, Judge Fleissig was a magistrate judge on her court, a position she held from 2001 to 2010, and previously served as an Assistant U.S. Attorney and then U.S. Attorney in St. Louis. Judge Fleissig earned her bachelor's degree from Carlton College and her J.D. from the Washington University School of Law. And welcome, Judge. The Honorable Richard Story is a Senior U.S. district judge for the Northern District of Georgia, and is a Member of the Judicial Conference's Committee on the Judicial Branch. Judge Story joined the Federal bench in 1998 after serving more than a decade as Chief Judge of the Superior Court of Georgia's Northeastern Judicial Circuit. Judge Story has also served as a judge for the Hall County Juvenile Court, as a special assistant attorney general for the State of Georgia, and in private practice in Gainesville, Georgia. Judge Story holds degrees from LaGrange College and the University of Georgia School of Law. Welcome, sir. Before proceeding with testimony, I remind the witnesses that all of your written and oral statements made to this subcommittee in connection with this hearing are subject to penalties of perjury, pursuant to 18 U.S.C. Section 1001, which may result in the imposition of a fine or imprisonment of up to 5 years, or both. Please note that your written statements will be entered into the record in its entirety, and, accordingly, I am asking that you summarize your testimony in 5 minutes. To help you stay within that time, there is a timing light on your table. When the light switches from green to yellow, you have 1 minute to conclude your testimony. When the light turns red, it signals your 5 minutes have expired. I am sure that both of you would love to have such an arrangement in your courtroom. Judge Fleissig, you may begin. STATEMENT OF HON. AUDREY G. FLEISSIG, U.S. DISTRICT JUDGE, EASTERN DISTRICT OF MISSOURI; AND HON. RICHARD W. STORY, U.S. DISTRICT JUDGE, NORTHERN DISTRICT OF GEORGIA STATEMENT OF HON. AUDREY G. FLEISSIG Judge Fleissig. Thank you. Chairman Nadler, Ranking Member Collins, Chairman Johnson, Ranking Member Roby, and members of the subcommittee, thank you for the invitation to testify today. Judge Story and I are here on behalf of the Judicial Conference of the United States, the national policymaking body for the Federal courts. I would remind you, as Conference witnesses, we do not speak for the Supreme Court. I will briefly highlight four points. First, we are committed to the public's right of access to the courts. Secondly, we are continually working to improve the public's access to PACER. Third, proposals to change the Case Management system, or PACER, fee structure could have serious unintended consequences, both for public access and court operations. And fourth, the Judicial Conference has carefully developed policies on audio and video usage in both Federal trial courts and courts of appeals. First, let me assure everyone that the Federal judiciary shares Congress' commitment to the public's right of access to the courts, which Federal judges must constantly balance with the rights of parties to the case. The primary mission of the court is to be accessible to the public as a fair and efficient forum for the resolution of cases and controversies between parties. Federal courts for hundreds of thousands of individuals and organizations is their chosen forum to seek justice, protect rights and liberties, and adjudicate disputes under law. Litigants' access to courts is, therefore, paramount. Almost every step of the Federal judicial process is open to the public. All case opinions are available free to the world online. Case dockets are posted online, and anyone may attend court and may review case pleadings and other documents for free at a Federal courthouse. We have also developed a successful electronic filing system and a portal for court documents called PACER, which processed half a billion requests for documents last year. Second, the judiciary is working to improve PACER and public access to PACER. Most users pay nothing to use PACER because of fee exemptions or waivers, which, effective in January, will be doubled. Of the remaining users, a small percentage of so-called power users pay the bulk of the fees. We have improved public access through other initiatives described in my written testimony and intend to continue to improve PACER with the advice of a newly-forming public access user working group. Third, proposed changes to eliminate PACER fees and to reengineer the Case Management system could be unfair to litigants, greatly disrupt court operations, and would likely cost an enormous amount of time and money. Our Case Management and Public Access systems can never be free because they require over $100 million per year just to operate. That money must come from somewhere. No additional taxpayer appropriations have been proposed. Remaining alternatives are to drastically increase the fees for litigants seeking to file court cases or slash spending on essential court operations, such as clerks, probation officers, and courtroom hours. The judiciary has serious concerns about the removal of the current funding mechanism with no replacement source of funds, effectively turning the PACER system and other elements of electronic filing into a massive unfunded mandate. Shifting funds from PACER users to litigants through increased filing fees would increase barriers to filing suit for many litigants and, thus, unduly hinder access to justice. Legislation proposes a new consolidated case management system, possibly even to include State court systems. Two examples in my written statement illustrate how hundreds of millions of dollars and many years of effort would likely be required to accomplish this. Allowing unlimited free access to PACER, along with a consolidated filing system, could impact the speed and reliability of the system and raise additional concerns regarding security, quality control, and data integrity. Finally, regarding video and audio usage, we have carefully considered how they can be used to improve public access without jeopardizing the fairness and integrity of the proceedings. Today a member of the public can easily access on the internet an oral argument audio from any Federal court of appeals for free, and, in some cases, in real time, or appellate courts also provide video of some or all arguments. At the trial court level, recording of proceedings is restricted in order to preserve and protect the litigant's right to a fair and impartial trial. Mr. Chairman and members of the subcommittee, thank you again for the opportunity to testify, and I will be happy to answer your questions. I request my full statement be entered in the record. [The statement of Judge Fleissig follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Mr. Johnson of Georgia. Thank you, Judge. Judge Story, you may begin your testimony. STATEMENT OF HON. RICHARD W. STORY Judge Story. Committee Chairman Nadler, Ranking Member Collins, Subcommittee Chair Johnson, and Ranking Member Roby, good afternoon. I am pleased to be here to testify on the topic of ensuring the public's right of access to the courts. I have to say I would be remiss if I didn't just momentarily thank Congressman Collins for his very kind words. I appreciate those words. And I will say also that this is even more special for me because being from the Northern District of Georgia, this is the first time I have appeared before a congressional committee since my confirmation hearing. To have the Chair be from the Northern District of Georgia and to have the Ranking Member of the committee from the Northern District of Georgia, that is a special aspect for me as well. So thank you very much for this opportunity. I want to assure you that each Federal court and---- Mr. Johnson of Georgia. I will gladly grant you an additional minute on your time. [Laughter.] Judge Story. I will try not to need it, Chairman. Thank you. I want to assure you that every Federal court and every Federal Judge takes very seriously the subject of public access to the courts. Federal judges adhere to a presumption of openness whereby court proceedings are open to the public. That presumption also applies to court records, including documents filed by litigants in the case, written orders and decisions issued by the judges. Sometimes judges are asked to balance the right of public access with a litigant's request for confidentiality. In my brief remarks to you, I will focus on how judges weigh those competing interests. Let me first point out an important distinction between protective orders and sealing orders. In the early state of litigation, the parties engage in discovery. Typically, material exchanged in discovery, which, let me assure you, in this electronic age can be massive, are not filed with the court typically. Parties often ask the court to enter a protective order to govern the disclosure of certain materials that are exchanged during that discovery process. If protective orders were not entered, the parties would have to litigate over the protection of their confidential materials, causing the case to likely bog down and become much more costly for the litigants. Even so, most courts are very circumspect about entering protective orders. We endeavor to draw such orders in as narrow a fashion as possible so as to allow meaningful public disclosure while affording some protection to the litigants. Once parties file materials with the court as part of the adjudicative process, they must be made a part of the public record unless the court enters an order that seals those documents. Again, realizing that a sealing order places a matter outside the public purview, the courts impose a significant burden on the party that is requesting the materials be sealed. The primary mission of the courts is to provide a fair and efficient forum for the resolution of real controversies between both public and private parties. In exercising our constitutional duty, a judge has a certain level of discretion in hearing an individual case. When a request for sealing is made, the judge weighs the need for confidentiality against the public presumptive right of access to court proceedings and records. The law recognizes if there are situations where that access must yield because of a party asserts a compelling interest in protecting that information from the public for reasons such as intellectual property, trade secrets, or private, personal information. On occasion, there are good reasons for courts to grant a litigant's request to keep parts of the proceedings confidential. In deciding to seal material in cases, judges must consider and articulate why the interests and support of non-disclosure are compelling, why the interests supporting access are less so, and why the seal is no broader than is necessary. Even when a document is sealed, courts continue to take the public's right of access into account. The specific requirements of binding case law varies somewhat from district to another, but I have included in my written testimony some examples of that. But because there are so many competing interests to be considered in every case, the best approach is to allow the trial judge to have discretion concerning the sealing of documents. He or she is in the best position to do so based on the facts of the case, governing case law, and the district's local rules and practices. Keep in mind that a judge's decision to seal is subject to appeal. The strength and thoroughness of the appellate process provides reviews and checks on those decisions. Also third parties have the ability to intervene and assert the rights of public access to documents as well. Thank you for the opportunity to address you here today. Let me close where I began. All Federal courts and all judges take very seriously public access to the work of the courts. That is how we are justified in the public having confidence in what we are doing, and they do have to be able to have access to that, and we understand that and appreciate it. And I look forward to answering any questions that you may have. Thank you. [The statement of Judge Story follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Mr. Johnson of Georgia. Thank you. We will now proceed under the 5-minute rule with questions, and I will begin by recognizing myself for 5 minutes. Judge Fleissig, both of the Judicial Conference's camera pilots were reviewed favorably by judges who participated, which seems at odds with the strict limitations against cameras that currently exist. Why did the Judicial Conference continue to impose strict limits, particularly on district courts, in the face of such seemingly strong evidence that the presence of cameras was beneficial? Judge Fleissig. Thank you, Chairman Johnson. I am so sorry. Thank you, Chairman, for the opportunity to address this important question. The Judicial Conference has engaged in two multiyear, in-depth studies with respect to cameras in the courtroom, and each time that has happened, the results that have come back have, in fact, been mixed. And while some have had favorable experiences, others have not. And the Judicial Conference has carefully reviewed those studies, and in balancing all of the information presented, felt that the detriment to allowing cameras in the courtroom outweighed the benefits of it, separate and apart from the cost of technology and resources that it would take to implement such a policy. We feel that on balance, it can be very destructive to the integrity of the trial court process and be detrimental on balance. Mr. Johnson of Georgia. What factors led to that conclusion? Judge Fleissig. Various factors, including the fact that trials, as we know as trial judges, are incredibly stressful events to begin with. Witnesses come from far away. They are not comfortable coming to testify in court. Frequently, very embarrassing information can come forth when a witness is on the bench in cross examination from trial counsel on the other side, and often very confidential matters are discussed as well. And we have certainly seen some notorious trials in our past where cameras did not help in instilling any respect for the court process. And we believe that the litigants' interests are what is paramount. Mr. Johnson of Georgia. Well, let me ask you this question. Is the wealth of data and experience from State courts of relevance to the Judicial Conference's policy on cameras in the courtroom and allowing same-day livestreaming? Judge Fleissig. Absolutely, Chairman, and our understanding is that the experience of State courts has been mixed. And while many State courts do, in fact, allow cameras in the courtroom, many of them very rarely offer any televised accounts of any court proceedings. So while it is possible, those courts could go for long periods of time without any court proceedings actually being televised. So it is a full range of experiences that we see from the courts. Mr. Johnson of Georgia. Thank you. Judge Story, your testimony states that you want to emphasize the sealing court filings is the exception, not the rule, in civil litigation. But it is not just a quantity problem. It is also a quality problem. Reuters reporters here today have documented a troubling amount of information relevant to public health and safety that has been kept under seal. If information of greatest public relevance is kept under seal, it is not counterbalanced by the fact that other potentially mundane aspects of a court proceeding are publicly available. Do you agree with me on this point and that, accordingly, courts must be careful even if only a relatively small amount of material is to be sealed? Judge Story. Mr. Chairman, I absolutely agree that we have to be extremely careful because what we are talking about is public access, and so a decision to seal matters has to be carefully considered. And you mentioned public health and safety. Those are substantial matters that have to be considered by the judge and weighed against the other interests that are being proposed to counterbalance that. Yes, the answer to your question is, yes, that is an important matter. Will it always carry the day? No, it is a balance, and you have to look at the factors from both sides and make a determination. And that is what I think a judge is uniquely in the place to be able to do. Mr. Johnson of Georgia. Thank you. I will now recognize the gentlelady from Alabama, Ranking Member Roby, for 5 minutes. Mrs. Roby. Thank you, Chairman. Judge Fleissig, State governments have access to far fewer resources than the Federal government, yet many State courts have public access systems that are far more user friendly than the PACER system. So what are the courts doing to improve searchability and public access to these documents? Judge Fleissig. Thank you. We do continue. Making PACER as user friendly and effective as it can be is very important to us and something that we continue to work on. We continue to upgrade the user interface systems for PACER. We have proposed recently and approved in the Judicial Conference to increase the exemption level for access to PACER. And we have just begun to form a user group, a user working group, with representatives from the media, academia, the legal profession, and others to help us understand how best to improve our system. Our system, we exist for the most part to have these filings come into our court, come in with integrity, be available and accessible, and that has occurred, and it has occurred well. And while many State court systems have systems that allow free access, that free access often does not involve the documents themselves. It will involve free access to a docket sheet, and we are endeavoring to make the full scope of information available through our PACER system. We do take it very seriously. Mrs. Roby. So all 94 district and 13 appellate courts administer their own case management electronic case filing systems. So what are the cost savings if the courts consolidated the administration of the Case Management/ Electronic Filing system? Judge Fleissig. It is difficult for me to imagine any cost savings if they were to be consolidated. As I am sure the Ranking Member knows from our written testimony, we have some examples of situations where other agencies have attempted to do so on courts, and not done so successfully or done so at great cost. Right now both the statute and the rules provides that each court will maintain its own docket, and while consolidation is something that can be considered, it has to be considered in the context of what will the cost of that be. What level of disruption will it cause? What will be the impact on the speed and integrity of the system if we do that? What cybersecurity risks will be created by that? If there is an attack on a particular district's system that is handling a very notorious case, is that going to affect the speed and integrity of the filing system across our Nation? These are things that we must consider in considering any notions of consolidation, and I would hope that they would be studied and determined before any steps toward consolidation could be taken. Mrs. Roby. Sure, that is all very helpful. Just building off, Judge Story, with what the Chairman was asking as it relates to sealing documents and protective orders. Are there situations in which businesses and individuals would be harmed, either personally or financially, by making public case files? You have touched on this, but I think it would be helpful from your experience on the bench if you could provide maybe some specific examples. Judge Story. I think the best example is we are concerned in our country today with protecting intellectual property. In this committee, it is a subject of your concern. And it is troubling to me that in order for an entity that has valuable intellectual property to assert its rights relative to that property and come into the Federal courts that should provide them a forum in order to access that, they are risking releasing that intellectual property. So then there is no need to go out and try to find a way to get to it. Come to the courthouse, and come to the public desk, and open PACER, and there it is. I think that there are a number of instances. But, again, that doesn't always win either because that is why we need that human factor that weighs it and considers it as a neutral person, but who understands the presumption for public access to the courts. That is the safest way, I think, to assure fairness to everyone. Mrs. Roby. Thank you very much. I yield back. Mr. Johnson of Georgia. Thank you. I now recognize the chairman of the full committee, Representative Nadler, for his 5 minutes. Chairman Nadler. Thank you very much. I want to begin by making clear that my express support for video and audio taping in courtrooms is for appellate courts only. It does not extend to trial courts for reasons of witness intimidation or whatever. Whoever wants to handle it, the Michigan Supreme Court is a court that operates on the presumption that its proceedings should be video recorded. In a letter to the committee, the Chief Justice of that court wrote, ``My view in opening the doors of the Federal courts to television coverage is simple. It is the public's court. They should be able to watch it work with as little difficulty as possible.'' First, Judge Fleissig, then Judge Story. What is your response to the Chief Justice's statement? Judge Fleissig. We do take this very seriously, and the Judicial Conference has permitted each circuit to make its own determination with respect to the audio or video recording of appellate-level oral arguments. And four of the circuits do, in fact, either routinely or periodically allow the video all. Many others allow streaming of their arguments, and all of the appellate courts in our country allow access to audios of their arguments for free, oftentimes same time. And, for instance, in my circuit in the Eighth Circuit, they are available within 2 hours of the oral argument. And so the audio of those recordings is available across the country, and we believe that it is important for each circuit to make its own determination about how it is going to approach this important subject. And they have each approached it differently, which permits us over time to see how it has worked in each of the circuits in real life. Chairman Nadler. Judge Story? Judge Story. I agree. Chairman Nadler. Okay. Judge Story. I have nothing to add, quite honestly. Chairman Nadler. Well, thank you. Then let me continue with Judge Fleissig leading on from what you just said. Can you explain why the public's right of access to court proceedings should vary by circuit, which is the Judicial Conference's policy? What factors do the Conference and your committee consider when it decides to let each court of appeals formulate its own cameras and audio policies? Do you have any plans to reevaluate that policy or to adopt a policy encouraging circuit courts to provide livestreaming video and audio? I mean, one would think, I would think, that if it is a good policy in terms of justice and opening the courts, that allowing video and audio access the courts in real time is a good policy period, in this circuit, but not in the circuit. Why should it vary by circuit? Judge Fleissig. Well, we do have a decentralized system in our country, and so each circuit does have the ability to make its own decisions in this regard. Judge Story and I both sit on committees that study these issues and make recommendations to the Conference. Chairman Nadler. All right. Would you think it a good idea for Congress to say do it across the board in all circuits? Judge Fleissig. I think that this is a matter that should be decided by the courts, and we are moving in that direction. I realize that the pace is of some frustration to certain members of the public and to members of this committee. But as we develop this, policies are able to be developed in this arena so that we can find the right way to approach these issues. Chairman Nadler. Thank you. I will not take that as a comment on the PACER question. Judge Story, your testimony describes clearly how things ought to work when it comes to law governing motions to seal. What evidence is there to show that things are working the way they should, that judges, in fact, are giving reasons why a materially-given case ought to be sealed? Judge Story. The only evidence would be the orders issued by the judge. As to whether it happens in every case, I would not represent to you that it does. The truth of the matter is under the press of business, when a judge in a busy trial court is presented with a consent order from parties resolving a matter, that order may be entered and perhaps not looked at as closely in terms of the effect on access. That can happen. I will be honest with you. Do we need to step back and realize that that is an issue that has come to the fore? Yes, I believe we do. I think that the courts need it, we don't operate in a vacuum. We realize what is being said. We understand and appreciate the criticisms of the court, and we take those into account. I can say to you I hear you saying this. I can tell you right now there is a motion pending before me, and I am looking at differently because I have had to think more about it now. And if we move these things to the front burner, they get more attention, and I think this has more attention. And that is as candid with you as I can possibly be. I think that is the case. Chairman Nadler. Thank you. My time has expired. I yield back. Mr. Johnson of Georgia. Thank you. That is a compliment to the Committee for having this hearing today, and we appreciate that. I will next turn to the gentleman from Virginia, Mr. Cline, for 5 minutes. Mr. Cline. Thank you, Mr. Chairman. I thank the judges for coming in today, for their willingness to answer questions as well. We had Members' Day for our own colleagues on the committee last week, and we weren't allowed to ask them questions, so I commend you all for making yourselves available. This is a very important topic that we have jurisdiction over in the Judiciary Committee, the Federal judiciary. Courts affect our daily lives, and they oversee everything from divorces and criminal cases in State courts to major U.S. Supreme Court decisions that shape our jurisprudence for decades and centuries. The purpose of today's hearing is to discuss the public's right to access court information, whether it be through the PACER system or the standards for sealing documents. Transparency in government is vitally important as it improves the public's trust in their government, but our efforts to ensure this trust should not be taken likely, especially in the court system where some of the most private aspects of an individual's life may be discussed. It is a balancing act, as you said, that we are here to discuss today. However, it is concerning to me that despite trends toward more transparency in other sectors of the government, access to our Federal courts is often less so, with the PACER system continuing to charge a per-page fee for access to documents. As an attorney, I practiced in my home State of Virginia where I believe we have a robust system to access our court files online, constantly improving, but maintaining a system that is free of charge from general district courts to the Supreme Court of Virginia. Access to juvenile and domestic relations courts is limited only for the purposes of payments and select JDR courts. And I am pleased to co-sponsor the ranking member's PACER bill. While I am in favor of same-day audio, I do have reservations about allowing cameras in the courtroom in real time as there are many issues that must be addressed to ensure the privacy and constitutional rights of those in the courtroom, witnesses and others, but also to ensure that in this of 24-hour news coverage, we don't experience the problems that often plague our own institution here with people playing to the camera. The current policy of audio coverage strikes the right balance. And that is why this past spring I led a bipartisan letter to the Supreme Court requesting to make available same-day audio for a single case, Department of Commerce, et al., v. New York, et al., regarding redistricting. Although video coverage of Supreme Court hearings has never been allowed, audio files usually are released at the end of the week. Unfortunately, our request was denied. We have important topics to deal with today, and I look forward to the discussion. I really don't have any questions for the judges, except for one. Judge Fleissig, you mentioned power users. Can you tell me what a power user is? Give me an example. Judge Fleissig. Yes, sir. Thank you for the opportunity to explain this. A small percentage of the users of the PACER system account for an inordinate amount, three percent, accounts for approximately 87 percent of the fees that are generated by PACER. And these are entities that obtain information from the system and then use it as part of their business model. They will repackage it in some fashion and make it available to others who are able to access it through their interface system. Mr. Cline. So commercial entities. Judge Fleissig. Yes, sir. Mr. Cline. Okay. Thank you. I don't have any other questions, Mr. Chairman. I yield back. Mr. Johnson of Georgia. Okay. Thank you. Can you give us some examples of those commercial interests that monetize the PACER system? Judge Fleissig. For instance, Bloomberg. There are entities that obtain the information from the system, and then they resell it to the legal community and to others. And people are able to access these systems at law schools, in law firms, other places, and there are numerous such individuals. I hate to name them by name here. Mr. Johnson of Georgia. Thank you. I will next turn to the gentleman from California, Mr. Stanton, for 5 minutes. Mr. Stanton. Mr. Chairman, you just demoted me to California. I proudly represent Arizona here in Congress. That is all right. [Laughter.] Mr. Stanton. And I want to say good afternoon to Judge Story and Judge Fleissig. Adequate access to our courts is essential to ensure equal justice under the law. That is why this past July I worked for the passage of H.R. 1569, a bill adding the cities of Flagstaff and Yuma to the list of locations in which Federal district court can be held in the State of Arizona. That legislation addressed the physical barrier often presented to rural and tribal communities, including the Hope and Navajo nations, that need better access to the Federal court system. As we talk about other accessibility measures to the courts, such as video and audio, tribal communities must be part of that conversation. The complexity between statutes, government policies, and U.S. Supreme Court precedents lead to tribal members appearing in Federal court proceedings at far higher rates than non-Native Americans. Given the higher interactions with our judicial system, it is critical that accessing the courts is a tangible option for them. Yet as my staff was preparing for this hearing, it was hard to find information on tribal communities accessing the courts from a telecommunications perspective. So I would like to start there. How is the Judicial Conference addressing the lack of infrastructure, both in terms of courtroom proximity and telecommunications, for our tribal communities? Judge Fleissig. Thank you, and I do want to say I was pleased as a member of the CACM Committee to recommend the change in the places where in your State. Mr. Stanton. Thank you. Thank you. Judge Fleissig. And I have to be honest with you. I don't know that our committee has really focused on tribal communities in particular. I know that we have, for instance, recently developed a new telephone system that makes court information available both in English and in Spanish to try and increase access to the courts. And as a member of the CACM Committee, I think that is a question that bears examination. Mr. Stanton. That is a fair answer. I really appreciate that. It was mentioned in your testimony that PACER can be used to access court documents. Of course, PACER requires an email account and a payment method. It is another reason why in the other committee I am lucky to serve on, Transportation and Infrastructure, we need to make sure we do more to support broadband access in rural areas and, in particular, in tribal communities so they get access to justice through the PACER system. One recommendation I might have is that the Judicial Conference reach out to our tribal communities and ask them directly how they can better access our court system moving forward. Judge Fleissig. Thank you. Mr. Stanton. I would like to shift gears to address an issue about the courts in Arizona and that we are facing an extreme shortage of Federal judges. Arizona is one of the fastest-growing States in the country. There are 22 tribal nations in the State that need to access to the Federal courts, and because of the State's proximity to the border, judges have high numbers of immigration- and border-related cases. We desperately need more judgeships to account for these factors. There are currently only 13 authorized judgeships in Arizona, one of which is temporary. The temporary judgeship was authorized in 2002, and while the district's total filings have increased more than 85 percent since then, no new judgeships have been authorized since. That is 17 years of growth without any new judges in our State. The lack of judges in Arizona run parallel to the larger conversation about accessing the courts. If there aren't enough judges to efficiently manage caseload, then people's access to justice is inhibited. As you know, the Judicial Conference does a comprehensive review of caseloads and judgeship numbers for courts across the country, and subsequently recommends how many new judgeships district courts should have. When will the Judicial Conference release their next set of recommendations? Judge Fleissig. Is this the next set of recommendations with respect to judicial positions? Mr. Stanton. Yeah, where new judges should be located. Judge Fleissig. I am afraid I don't have that information. Mr. Stanton. That is all right. Judge Fleissig. But we will be happy to get that to you. Mr. Stanton. The most recent survey for Arizona indicated seven new judgeships were needed. We were only granted four new judgeships, so we will obviously be advocating for that in the next set of recommendations. We do need to close the gap between tribal communities and the judicial system, and we need to ensure Arizona has the adequate number of judges to address the increasing caseloads that they are handling. Thank you, Mr. Chairman. I yield back. Mr. Johnson of Georgia. And, Judge, you can answer that question. Mr. Stanton. Oh, please. Judge Fleissig. If I may, the information I have just received---- Mr. Stanton. In real time, all right. Judge Fleissig. In real time, yes, but not electronic, is that the Conference has recommended new judgeships for Arizona. We still wait the introduction of a bill to address our judgeships requests, and every 2 years we do an audit, and it is released in 2019. I hope that assists. Mr. Stanton. That does. Thank you so much. Mr. Johnson of Georgia. Thank you. And now we will recognize the other gentleman from California--I am sorry-- Arizona----[Laughter.] Mr. Biggs. Thank you. Mr. Johnson of Georgia [continuing]. Mr. Biggs for 5 minutes. Mr. Biggs. Thank you, Mr. Chairman, and I will say that when you announced that he was from California, it certainly explained his voting record to me. So thank you, Mr. Stanton. Mr. Stanton. I will be asking for more time after Mr. Biggs is done. Mr. Biggs. I knew you would, my friend. So thank you so much for being here today and appreciate the Chairman holding this hearing. I think it is an important topic. And I had the privilege of trying a few cases myself, literally hundreds of cases. And I want to talk a little bit about the camera in the courtroom and those issues because there is some advocacy from some of my friends who would like to see that. Have either one of you worked with cameras in the courtroom? Judge Story. I have as a State judge. Mr. Biggs. Mm-hmm. Can you comment on what your perception of how that may have changed non-camera proceedings? Judge Story. There were mixed results in all honesty. It depended upon who was in the courtroom at the time. Mr. Biggs. Meaning? Judge Story. It would affect conduct at times. Mr. Biggs. Okay. On the part of the witnesses, attorneys, all of the above? Judge Story. All. All. Not jurors because jurors were never shown. They are always protected from being shown. Mr. Biggs. Yeah. Judge Story. But I think in terms of certainly as to witnesses and at least times as to lawyers. Mr. Biggs. Okay. Judge? Judge Fleissig. And if I may, my district, the Eastern District of Missouri, was one of the districts that participated in the most recent pilot. And I would speak to attorneys at my pretrial conferences and encourage them to agree to cameras for their proceedings, and I was unable to get any of the attorneys to have both sides agree to that. They were concerned about it disrupting their trial, their court proceeding. Mr. Biggs. Yeah, I would have to say that I kind of lean that way myself. We never had live TV proceedings in any of my trials. And some of the attorneys that were on the other side, never me. Boy, I would never play to the camera, I can tell you that. But I think some of my colleagues on the other side would have been more than happy to play to the camera, so I think that is probably it. In fact, I am going to read something from Chief Justice Roberts on cameras in the courtroom and just get you reaction to that if I could. ``I think that having cameras in the courtroom would impede that process. We think the process works pretty well. I think if there were cameras, that that lawyers would act differently. I think, frankly, some of my colleagues would act differently, and that would affect what we think is a very important and well-functioning part of the decision process. I do not think that there are a lot of public institutions, frankly, that have been improved by how they do business by camera.'' Senator Howard Baker told me at one point that he thought that televising of the Senate proceedings, he used a strong word. I am sure it is not right, whether it is ruined, but it certainly hurt the proceedings. And, you know, Judge Story, since you actually had that experience, do you think that cameras actually ruin the proceedings? And if not, because you said that you had mixed results. How it might have improved the proceedings and what you? Judge Story. And I unfairly left out one other person that maybe was affected by the cameras in the courtroom, and it was the judge. And it was because the case, it was one of the first cases with cameras in my State, and it was a death penalty case. The victim was a child. The defendant was a former deputy sheriff. And so there was tremendous public interest, and the cameras ran the entire trial, and they never were turned off. And I was conscious of those cameras because of my concerns that I would have facial expression that would be inappropriately being displayed on the news that night as there was discussion about some horrific event that had occurred and was in the evidence, and I would appear to be smiling as they were talking about that. And I was conscious of it was another factor for me in how I conducted myself in the trial. Mr. Biggs. Well, so we have talked now about cameras in jury trials, but we haven't really talked bout in appellate proceedings. And I think Chief Justice Roberts largely probably about appellate proceedings because he doesn't like it, is my understanding. What are your thoughts on cameras in appellate proceedings? Judge Fleissig. Judge Fleissig. I am not sure I know exactly how much is to be gained from having a video camera capture a person standing at a lectern speaking to the judges and having the three judges respond. And, in fact, when I have watched some of these, I found it distracting to even listen to it because you end up focusing on a judge who may be thumbing through the brief. I find that the audio is far more effective for me when I am trying to capture what happened in an appellate argument. And I am not sure how much more is to be gained when exhibits are not being offered, witnesses are not there. The video is of two lawyers standing at a lectern and three judges who are periodically asking questions. I realize we live in a TV age, but I am not sure how much more is gained. Mr. Biggs. My time has expired, but it is not unlike CSPAN showing Congress, I guess. Thank you, Mr. Chairman. Mr. Johnson of Georgia. Thank you. The gentleman from Pennsylvania, Mr. Reschenthaler, has arrived. Sir, I will recognize you for 5 minutes, questions. Mr. Reschenthaler. Thank you, Mr. Chairman. I am good. I appreciate it. I yield the remainder of my time. Thank you. Mr. Johnson of Georgia. Thank you. And with that, that ends the questioning for this panel. We will reconvene to hear testimony of our second panel after a 5-minute recess. Thank you all for coming. [Recess.] Mr. Johnson of Georgia. I will now introduce our second panel of witnesses. Lisa Girion is a reporter in Reuters' Los Angeles Bureau and previously served as top news editor at the Bureau. Much of Ms. Girion's reporting has been based on internal records produced in court proceedings, sometimes under seal. Before joining Reuters, Ms. Girion was a 16-year veteran and investigative reporter at the Los Angeles Times, where she produced stories on the intersection of government, commerce, health, and welfare. Ms. Girion also served as City Editor and Reporter for the Los Angeles Daily News and held previous reporting roles at the Dallas Times Herald, the Dallas Morning News, and the Wilmington News Journal. Ms. Girion received her undergraduate degree from Northwestern University's McGill School of Journalism. Welcome. Mr. Daniel Levine has been reporting on the U.S. Judicial system for 15 years, the last 9 of them at Reuters. His stories cover a range of high-profile legal issues across a range of issues. Before joining Reuters, Mr. Levine reported on legal issues for ALM Media, where he covered the Department of Justice and Federal courts. Mr. Levine received his bachelor's degree form McGill University. Welcome today, sir. Jodi Schebel is Co-Managing Partner at Bowman and Brooke LLP. She focuses her practice on product liability, premises liability, and personal injury defense litigation, and manages all facets of high-exposure litigation from case inception to trial. Ms. Schebel also serves as National Discovery Counsel for a major automotive manufacturer on class action and other product liability matters in both State and Federal courts. Since 2013, Ms. Schebel has served as pro bono counsel for Focus: HOPE, which is a nonprofit organization. Ms. Schebel received degrees from Wayne State University and Wayne State University Law School. I hope that I pronounced your name correctly. Ms. Schebel. It is Schebel. Mr. Johnson of Georgia. Schebel. All right, thank you. Please accept my apologies. Ms. Schebel. My husband will be happy it is pronounced correctly. Mr. Johnson of Georgia. Thank you. Seamus Hughes is the Deputy Director of the Program on Extremism at George Washington University, and is an expert on terrorism, home- grown violent extremism, and countering violent extremism. Mr. Hughes previously worked at the National Counterterrorism Center, serving as a lead staffer on U.S. government efforts to implement a security strategy, and for the Senate Homeland Security and Governmental Affairs Committee, serving as the senior counterterrorism adviser. Mr. Hughes is a graduate of the University of Maryland, and a recipient of the National Security Council Outstanding Service Award and two national Counterterrorism Center Directors Awards for Outstanding Service. Welcome, sir. Sunny Hostin is the Emmy-nominated co-host of The View and the Emmy-winning Senior Legal Correspondent for ABC News. From 2007 to 2016, Sunny was a host and legal analyst at CNN. Prior to working at CNN, Ms. Hostin filled in as a co-anchor for ABC News World News Now and America This Morning. Originally from the South Bronx, Ms. Hostin began her career as an Appellate Law Clerk at the Maryland Court of Appeals. She then joined private practice and later became a trial attorney for the Department of Justice and an Assistant U.S. attorney for the District of Columbia. During her time as Assistant U.S. attorney, Sunny was awarded the Special Achievement Award by Attorney General Janet Reno for her prosecution of child sexual predators. Ms. Hostin received her undergraduate degree in communications from Binghamton University and her law degree from Notre Dame Law School. Welcome. Last but not least, Mr. Jeffrey Toobin is a staff writer for The New Yorker and Chief Legal Analyst for CNN. He is author of several books, including The Oath: The Obama White House and the Supreme Court, and The Nine: Inside the Secret World of the Supreme Court. Mr. Toobin previously served as an Assistant U.S. Attorney in Brooklyn and as an associate counsel in the Office of Independent Counsel, Lawrence Walsh. Mr. Toobin earned his bachelor's degree from Harvard College and his law degree from Harvard Law School. Welcome, sir. We welcome all of our distinguished guests, and we thank you for participating in today's hearing. Before proceeding with testimony, I hereby remind each witness that all of your written and oral statements made to the Subcommittee in connection with this hearing are subject to penalties of perjury pursuant to 18 U.S.C. Section 1001, which may result in the imposition of a fine or imprisonment of up to 5 years or both. Please note that each of your written statements will be entered into the record in its entirety. Accordingly, I ask that you summarize your testimony in 5 minutes. To help you stay within that time, there is a timing light on your table. And when the light switches from green to yellow, you have 1 minute to conclude your testimony. When the light turns red, it signals your 5 minutes have expired. Ms. Girion and Mr. Levine, you may begin. First, Mr. Levine. STATEMENTS OF DANIEL R. LEVINE, LEGAL CORRESPONDENT, AND LISA GIRION, REPORTER, TOMSON REUTERS CORPORATION; JODI M. SCHEBEL, CO-MANAGING PARTNER, BOWMAN AND BROOKE, LLP; SEAMUS HUGHES, DEPUTY DIRECTOR OF THE PROGRAM ON EXTREMISM, GEORGE WASHINGTON UNIVERSITY; SUNNY HOSTIN, CO-HOST, THE VIEW; AND JEFFREY TOOBIN, STAFF WRITER, THE NEW YORKER STATEMENT OF DANIEL R. LEVINE AND LISA GIRION Mr. Levine. Well, good afternoon, and thank you, Chairman Johnson, Ranking Member Roby, for the opportunity to testify about Reuters' investigation of court secrecy, and to present our findings on the judicial supervision of sealed court filings that impact public safety. The courthouse is one of the great public forums of American government. Controversies litigated there, even those nominally involving two particular parties, often impact thousands, if not millions, of people. U.S. appeals courts have long recognized that documents filed in court are presumed to be public and that transparency is fundamental to ensuring accountability and confidence in the courts. To be sure, there are legitimate reasons for keeping some evidence confidential, like medical records or trade secrets. But the public has an interest in learning about drugs' undisclosed side effects, unsafe car parts, or other dangerous defects. That is why rules and precedents require judges to weigh requests for confidentiality against the public interest, and if they decide evidence must stay secret, to explain their reason in the record. We have found that is simply not happening much of the time. Our investigation focused on large cases involving allegedly defective products used by millions of people. We reviewed documents files in 115 of the largest product liability multi-district cases litigated over the past 20 years. Those cases consolidated about 250,000 individuals' lawsuits, each involving an injury or death. We found that indiscriminate secrecy is a systemic problem. Federal judges sealed evidence relevant to public health and safety in about half of the largest product liability cases. And in 85 percent of those cases where Reuters found health and safety information under seal, judges provided no explanation for allowing the secrecy in spite of their duty under the law to do so. Ms. Girion. Courthouse transparency is more than a lofty ideal. Secrecy has consequences. We found that hundreds of thousands of people were killed or seriously injured by allegedly defective products after judges in just a handful of cases allowed litigants to keep secret evidence that could have raised alarms about potential danger. The opioid epidemic, of deep concern to several members of this committee, is the most significant example that we have found of the tragic toll of secrecy. The epidemic has been blamed on greedy drug makers, feckless doctors, and lax regulators, but our investigation found that judges, too, contributed to the depth and duration of the catastrophe. In 2001, just a few years after the pain pill, OxyContin, hit the market, West Virginia became the first State to sue Purdue Pharma, accusing the drug maker of duping doctors into widely prescribing the narcotic by convincing them it was less addictive than other opioids. West Virginia filed some of the evidence it gathered in court, but the judge allowed that evidence to come in under seal, and he put no explanation in the record. Because the case settled before trial, the evidence remained hidden, out of sight of regulators, doctors, and patients. Over the next few years as OxyContin sales and opioid-related deaths soared, more than a dozen other State and Federal judges overseeing similar lawsuits against Purdue took the same tact, keeping company records secret. It was not until my L.A. Times colleagues and I reported on the contents of some of those sealed documents in 2016 that doctors would learn that for many patients, OxyContin did not work as promised. The evidence showed that Purdue knew of the shortcomings. Further evidence that might help explain the opioid epidemic continued to be covered up, even as the prices and the litigation exploded. Our reporting showed that Dan Polster, the Federal judge overseeing ongoing opioid lawsuits, has repeatedly allowed important evidence to be filed under seal, again, without any public explanation. In a stern rebuke earlier this year, the Sixth Circuit Court of Appeals reminded Judge Polster than when evidence is filed in court, secrecy is the exception, not the rule. Every decision to seal, the court said, must be justified by a compelling reason. We encourage you to read our stories attached to our written testimony. They relate other examples of judges allowing important evidence to remain under seal to the detriment of public health and safety. Thank you for your attention to this issue. [The statement of Mr. Levine and Ms. Girion follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Mr. Johnson of Georgia. Thank you. I will now recognize Mrs. Schebel for 5 minutes. STATEMENT OF JODI M. SCHEBEL Ms. Schebel. Thank you, Chairman Johnson and Ranking Member Roby for having me here today. So I think the main thing that I would like to talk about is the fact that we have really got three areas. There are three stages with respect to litigation where confidential information that is maintained by a party might be put into the court record or might request to be sealed. The first is really through a protective order, and we have a court rule, Rule 26, Federal Rule of Civil Procedure 26, that governs the entry of a protective order. And the rule specifically states, and this is 26(c)(1)(G). It states that ``A court may issue an order to protect a party or a person from annoyance, embarrassment, oppression, or undue burden or expense,'' including that which relates to a trade secret or other confidential research development or commercial information, that it not be revealed, or it be revealed in only a specific way. So there is a court rule that prohibits or-- excuse me--permits courts to keep certain information exchanged during pretrial discovery as confidential when parties have confidential information that is requested of them in a case. The second stage is really where it comes in in filing of a motion. So you ask the court for some sort of relief in connection with a motion, and that you attach to it a party's confidential documents. That motion is going to be filed in the court record. We talked about PACER. It will be filed publicly so everyone can see it. But if a party's confidential information is appended to that filing, making that document public would or could strip that party of their property interest in the information that is contained in that document. And so there is a way for litigants to request the court to seal the record. That is made upon a showing of good cause generally, unless that is a motion that affects the substantive rights of the parties. As long as it is during pretrial discovery, the standard is good cause. And as long as it is substantiated by the party and the lawyer demonstrates that there is good cause to seal the information, it should be sealed, and generally is sealed from the public record. The last stage is really when you get to the adjudication of the merits of the case. So either that is at a summary judgment stage, or it could be a preliminary injunction. Some courts find that to be an adjudication on the merits, or it could be at trial. In that case, again, remember that the standard that the court employs, and it differs among the circuits, and this is set out in my written statement, the disparity and the differences between the circuits as to how they determine what the right standard is to seal. But in most instances, it is a compelling interest that in order to prevent the public from seeing a document that is appended to court filing that relates to the merits of the case, the party seeking to seal has to demonstrate a compelling interest to keep that information sealed. In my experience, courts weigh that very carefully. It is a big burden to overcome. But yet we do it, and we do it on behalf of our clients every day, so that we are balancing the public's interest to see information that the public has an interest in or might have an interest in, against our client's property interest in that information. And that could be confidential information. It could be a trade secret. It can be other intellectual property. And, of course, the tenet of our judicial system is based on the concept that, you know, we are innocent until proven guilty. And when it comes to tort law, we are not talking about guilt. We are talking instead about some sort of a liability. But still, just because a corporate defendant has been sued does not mean that they are liable for whatever they have been sued for. They have an opportunity to litigate that fully. And just because they have been sued doesn't mean that their confidential information and their propriety documents should be made public, you know, without them having an opportunity to show that there is a compelling interest to keep the documents as confidential. And I think the rules that are set out in allowing the judiciary to have discretion to consider those motions when they are made by the litigants is the appropriate way to go. [The statement of Ms. Schebel follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Mr. Johnson of Georgia. Thank you, Ms. Schebel. Next we will hear from Mr. Hughes for 5 minutes. STATEMENT OF SEAMUS HUGHES Mr. Hughes. Thank you. Chairman, Ranking Member, distinguished Members of the Committee, thank you for the opportunity to testify today. Access to public records is an inherent right in a healthy democracy. The current system prevents the public from effectively exercising that right. As the deputy director of the Program on Extremism, I track the legal development of hundreds of Federal terrorism cases on a system called PACER, the acronym being the Public Access to Court Electronic Records. The name is a misnomer, though. Public access comes at an exorbitant cost, a cost that the general public cannot afford. PACER is unnecessarily complex and convoluted. It is outdated. Simple tasks are hard to complete, and the costs are too high. Barring significant structural changes, the current approach will continue to fall short of its goal of providing access to the public. Quite simply, it is not easy to access court records on PACER. The website routinely crashes, it kicks you out, and then it charges for said attempt. The National Case Locator does not get updates quickly, requiring the users to go to individual district sites to get a breaking court record. The individual court websites are also badly outdated. If you attempt to do a search for an individual charge, you might be out of luck because that charge hasn't been update with the latest statute. There is no way to do a nationwide search for individual charges of bribery, of terrorism, things like that. Quite frankly, the local rules of each district vary widely. The judiciary would do well set baseline standards and requirements for all local rules. In some districts, documents that were once sealed and later unsealed by court order are never filed electronically on PACER. To access these documents, we are forced to build up an ad hoc system of local GW alumni who go to courthouses around the country for us and grab documents. Some districts have automatic unsealing at times, but those implementing the court order do not post the unsealed documents in a timely manner, which means you have to call a clerk's office, get it unsealed again, and then post it on PACER. In other districts, there is no set time for unsealing, resulting in documents that remain sealed on eh criminal docket, even when there is no legal reason for the information to remain unsealed. In other districts, search warrants are always filed electronically, others none. Sometimes a little investigative spotlight shuts down the whole system. In January, I found a search warrant related to a wide- ranging investigation into public corruption in the L.A. City Council. When I made that discovery public, the Central District of California locked down all search warrants filed on PACER. Most, if not all, search warrants recently filed in that district are no longer available online. This is against the spirit, arguably, of the letter of legislation requiring the public to have ready access to court filings, barring a court order sealing them. Information on PACER is limited. The Program on Extremism repeatedly had to go directly to courthouses to receive documents on terrorism trials in the mid-2000s. Trial exhibits introduced into evidence are routinely unavailable in PACER. You have got to call the U.S. attorney's office or the defense attorney and get those documents. The naming convention for how documents are filed in PACER is not uniform. In some districts it is ``United States v.,'' others ``U.S. v.,'' ``In the matter of,'' ``U.S.A. v.,'' which makes it hard to do nationwide searches. You have got to know the naming conventions for local districts. The Federal court fee system rakes in more than $145 million annually from its users. However, the judiciary takes an overly broad reading of congressional intent, which calls for only charging reasonable fees. The judiciary states that approximately ``87 percent of all PACER revenue is attributable to just 2 percent of users, large financial institutions, and major commercial enterprises.'' I am part of that 2 percent of users, the power used the judge called it. I do not feel particularly powerful using PACER. I am neither a financial institution nor a major commercial enterprise. We are an academic institution tracking extremism in the United States. The judiciary may suggest that I could get a waiver, but that waiver process is completely convoluted, and if I get that waiver, I can't post the documents on our public website. I can't inform other researchers on how to get this stuff. I can't give it to policymakers and congressional staffers. Without this service, the public is less informed about the nature of the homeland threat. There are a few proposed changes that would make a significant difference. One, baseline, make PACER free. Access is an inherent right in a functioning democracy. Two, the judiciary should set up a baseline standard for all local rules, which would provide guidance and direction on issues such as uniform naming conventions, sealing of documents, and the use of electronic devices. Documents uploaded on PACER should be text searchable wherever possible. RSS feeds can be done tomorrow. If you turn on the RSS feeds for all the courts, that would open up access in a way you wouldn't have seen before. Court proceedings that are recorded should be posted on PACER as standard practice, assuming there is not a court order to seal. Finally, PACER as a website is maddening and it is must fixed. The changes on the margins will not be enough. I appreciate the opportunity to testify today, and I look forward to your questions. [The statement of Mr. Hughes follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Mr. Johnson of Georgia. Thank you. Ms. Hostin, 5 minutes. STATEMENT OF SUNNY HOSTIN Ms. Hostin. Mr. Chairman and members of the committee, thank you for inviting me today. I am especially thrilled to be seated with my good friend, Jeff Toobin. We were colleagues at CNN and spent most of our time sparring about nuance points of law. While we often disagreed and I was almost always right, I believe we are on the same page today. I haven't done the research, but I have been told that I am the only network African-American journalist with a journalism degree, a law degree, I am a former Federal Prosecutor and a Member of the Supreme Court Bar. So I am somewhat of a unicorn, not the most qualified person perhaps to give a perspective, but I do believe I have a unique perspective representing a particular community. The absence of cameras in Federal proceedings and in Supreme Court, in particular, has a profound effect on African- Americans in the U.S. The judicial system disproportionately affects the African-American community in this country because African-Americans are the most incarcerated people in the world because the U.S. criminal justice is the largest in the world. African-Americans are 5.9 times as likely to be incarcerated than white Americans. As of 2001, 1 of every 3 black boys born in 2001 could expect to go to prison in his lifetime. My son was born in 2002, so I take this rather personally. The vast majority of African-Americans distrust the American judicial disproportionately than other Americans. The descriptors most often used: ``unfair,'' ``illegitimate,'' ``excessive.'' African-Americans, though no different than most Americans, learn about the intricacies of the criminal justice system through the news media. However, African-Americans consume more news media than any other group in the U.S. African-Americans watch 37 percent more television than any other demographic. They also consume more social media and more streaming. In my view, given these facts, there exists no better cure for the fundamental mistrust and perceived illegitimacy of the system than the transparency of the court that define it, in particular, the highest court in our land. The constitutional right of the public to attend proceedings is critical and indeed has been upheld by the Supreme Court. While it is a congressional right to attend every proceeding, no American is able to do so. A constitutional substitute for the level of judicial transparency demanded and envisioned by the framers is necessary if the trust of those most affected is to be restored and maintained. In my judgment, that substitute is television or livestreaming proceedings. Public access to a judicial proceeding must not be limited to seeing a report of a decision distilled by a journalist, more often than not without a legal background. Many of my legal journalist colleagues go to a 3-day law school course to prepare them for a career as a legal journalist. I watch as well-intentioned reporters doing the very best they can, with networks in a rush to be first, get the law wrong instead of getting it right. There is no better example in recent history than when the ACA decision came down. Audiovisual coverage of proceedings improves the media's overall ability to accurately report on proceedings. When televised, accuracy is a given. Veracity is a given. Charges of fake news easily dismissed. The courtroom camera always gets it right. Thank you, Mr. Chairman, for the opportunity to testify before your committee today. [The statement of Ms. Hostin follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Mr. Johnson of Georgia. Thank you. Last but not least, Mr. Toobin. Five minutes. STATEMENT OF JEFFREY TOOBIN Mr. Toobin. Thank you for the opportunity to testify, Mr. Chair and Ranking Member. My name is Jeffrey Toobin. I am a staff writer at The New Yorker and the chief legal analyst for CNN. My views today are my own. I graduated from law school in 1986. After a judicial clerkship, I had the honor of being a Federal prosecutor for 6 years, first with the Office of Independent Counsel and then as an assistant United States attorney in the Eastern District of New York, Brooklyn. There is no greater privilege for a lawyer than to appear in a courtroom representing the United States. I joined The New Yorker in 1993 and CNN in 2002. I am working on my eighth book about the Mueller investigation and now Ukraine. Two of my books, The Nine and The Oath, were about the United States Supreme Court, which I have covered as a journalist for more than 20 years. I have also had the opportunity to cover many high-profile trials, including those of O.J. Simpson, Timothy McVeigh, Martha Stewart, and Michael Skakel. Some were televised. Some were not. I should note that in the course of my work in the Federal courts, I have had the occasion to try to rely on the PACER system many times. Frankly, PACER is a disaster, and I would like to express my appreciation in particular to Congressman Collins, who has been such a leader in trying to reform PACER. My point here today is simple. The Sixth Amendment mandates public trials. In the 21st century, the only meaningful definition of ``public'' is one with audio and visual access. By now, we as a Nation have a lot of experience with cameras in the courtroom. In the States where it is legal and in the Federal experiments, we have seen by and large the public educated and the cause of justice advanced. Here is one example. I suspect many of you remember the case of Amadou Diallo, the unarmed immigrant from Africa, who was mistakenly shot and killed by four white New York City police officers in the Bronx in 1999. The judge in that case granted a change of venue to Albany, but he allowed cameras. The public saw the trial, which ended in acquittals. Before the trial, there were worries that the acquittals would lead to violent reactions in New York as in the Rodney King case in Los Angeles. But I think the fact that the public got to see the trial and hear the officers' testimony for themselves contributed to the peaceful reaction in New York. Every one could tell it was a hard case, even among people who disagreed with the verdicts. Cameras helped keep the peace. At the Supreme Court, all the justices, without regard to their ideological orientations, are protective of the institution. They don't want to jeopardize the respect the Nation has for their judgments. They are understandably cautious about making changes, but over the years, the Court has made changes. It installed a sound system in the courtroom. It changed the arrangement of the bench. It streams audio of the arguments, albeit with a significant delay. At a minimum, livestreaming of Supreme Court audio would be a major positive step and pose no risk at all to the customs of the Court. But live audio, which would be an improvement, is not enough. Cameras are necessary. As for the Supreme Court, I need hardly remind this committee of the importance of their decisions. As Congressman Chabot, who has long been a leader on this subject, has long reminded us, the justices pass judgment on the constitutionally of your actions, but you are prohibited from watching them do so. That is not right, and that is not fair. And here is one more fact to consider about the Supreme Court. I have been with many people who are attending their first Supreme Court argument, and they almost all say the same thing. ``Wow, the justices are impressive.'' ``They know their stuff.'' ``They are well prepared.'' ``They are working hard.'' I suspect if there were cameras in the courtroom, the broader public would say the same thing, and I look forward to that day. Thank you for the opportunity to testify here. [The statement of Mr. Toobin follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Mr. Johnson of Georgia. Thank you. I will now recognize myself for questions for 5 minutes. Ms. Girion and Mr. Levine, were you surprised by what you ultimately reported on, and what is one takeaway from your work that you think is important for Congress to know? Ms. Girion. I think we were surprised at the prevalence of secrecy in the courts that went unexplained by the judges, and where we had no opportunity to understand what the rational was, and what factors were weighed, and how the law was applied in those decisions. So that was a big surprise to us. And I think, I mean, one takeaway that I have is, as the other panelists said here today, you know, access and transparency of court proceeding sis vitally important to, you know, the public trust in the institution. But the court's transparency goes beyond that. When people who use products and may be harmed by them don't have an opportunity to learn information about them that is filed in court and is part of a, you know, a major dispute, you know, that is a real significant problem and a real harm. Mr. Johnson of Georgia. Thank you. Ms. Hostin, in your testimony you described the challenges of being a journalist with a legal background who is often called on to explain the complexities of an ongoing criminal case. How would greater camera or audio access to court proceedings help you do your job better? Ms. Hostin. I certainly think it would make my job a lot easier because I am now not in the position of having to regurgitate what happened because the viewer can see it for himself and herself. Now I am in the position of explaining perhaps the law. I am in the position of analyzing the law. That is very different than having sort of the burden of explaining exactly what happened. The other piece of it is that it provides, I think, access for other reporters as well. You need only press ``rewind'' to make sure that we all get it right as opposed to just relying on one person. It is just very, very clear that the few of us that have the ability to be in the courtroom, it is a very, very heavy burden to get it right each and every time. And we also have the added burden of our networks wanting us to be first, and that can be very problematic. Mr. Johnson of Georgia. Mm-hmm. Mr. Toobin, do you have anything to add? Mr. Toobin. Well, you know, one of the pieces of advice that journalists and all writers get is show, don't tell. You know, show people, don't tell them, and that is what cameras in the courtroom are allowed to do. And also just, you know, we really try to be accurate as much as possible, and if we can show what the judge is saying, what is actually going on in the courtroom as opposed to putting it through our own filter. You know, we do our best, but we make mistakes. But as Sunny said during her testimony, the cameras don't lie, and I think cameras would be simply a force for accuracy, and that is nothing but a good thing. Mr. Johnson of Georgia. Thank you. Mr. Hughes, I think you had a chance to hear the testimony from the Judicial Conference about PACER. Is there anything about that testimony that you would like to address? Mr. Hughes. Sure. Respectfully, I think they were arguing facts not in evidence. When you look at some of the arguments being if we open it up free, then the website will crash. Well, that is not a valid argument to not allow access for the public on these things. When the judges talked about, well, an outside or third party could file to unseal, well, that is true in some districts, but in Maryland where there was an ongoing in the first-of-its-kind Isis-funded plot going on trial, I filed to unseal the 70 documents. I was denied because the local rules don't allow for non-lawyers to file for unsealing, which then I had to go to GW's counsel to file a motion, right? We are restricting the ability for the public to have access to information they should have, and the website does not allow for it. So if you look at John Smith gets arrested and John Smith is a terrorist, and I want to look at John Smith, I also want to look at the search warrant associated with John Smith, and that search warrant is always unsealed right before trial. But that search warrant is not tied to John Smith's name, so I have to search every single search warrant in that district to find John Smith's search warrant just to get more information as a researcher to understand the nature of the threat. It is not user friendly. It is not useful for researchers. It is painful. Mr. Johnson of Georgia. Thank you. Ms. Schebel, in the case of a civil litigation and there is a pattern and practice that is apparent that judges are sealing documents, sealing pleadings without stating in an order the reasons for doing so, and there is no third parties that are contesting the sealing of a document, what is the legislative branch to do? And if you would---- Ms. Schebel. Sorry. I think the courts are doing a great job of analyzing the public's interest in information that comes to the court as a court document and weighing that against corporate litigants' interests in their private property or their confidential documents. I think the courts are doing a very good job of weighing that. What the legislature is to do, I think, is to leave that in the court's discretion. It is, as Judge Story said earlier, and I think we were all here to hear that testimony, that, you know, stripping the judiciary of its discretion and enacting some sort of a legislation to supplant what the judiciary has expertise in doing would not help the legal system. And I don't think it would further the interests of either the plaintiffs or the defendants, whether it is a corporate party or an individual who wants to see information protected. Mr. Johnson of Georgia. Thank you. With that, I will now turn to the Ranking Member, Representative Roby, for 5 minutes. Mrs. Roby. Thank you, Chairman, and I will try not to be repetitive. I may ask you to just go a little bit further than you have in your previous answers. But, again, thank you all for being here, and thank you for your candidness and your willingness to appear before this committee. Mr. Hughes, I particularly appreciate the level of detail that you went into. All of my questions have been answered by your testimony here today, but I would like to suggest since you were here in the room with the first panel, that we were referred to the working group Electronic Public Access, the Public User Group. I think that you contribute greatly to the courts' openness in that working group. I am not really sure how it is set up---- Mr. Hughes. I applied. I am waiting to hear back. Mrs. Roby. Okay. Well, good. Mr. Hughes. The jury is still out. Mrs. Roby. I am encouraged to hear that because I do think that because you are a user of PACER, a power user--is that what it was--I think you could really, really help give some insight moving forward about how to improve upon the PACER system. And then I would just ask, Ms. Schebel, if you would just, we were just talking about judicial discretion. And the things that I really wanted for you to focus in on and maybe expand upon is, you know, there have been arguments out there that we should mandate that evidence related to public health and safety should not be sealed. And so I just wanted to give you an opportunity to maybe even dive a little deeper in your response to those arguments beyond what you might have already stated. Ms. Schebel. Sure. I mean, I think it is important to recognize that just because a party is sued, and let's say that that party is a manufacturer of some sort, whether it is a drug or a consumer product. It doesn't really matter, but that party has been sued. There hasn't been a finding that the product injures the health, safety, you know, welfare of the general public until the finding is made, and usually that is after trial. Until that time, I think that corporate defendants have an interest in protecting their property and their intellectual property rights that are set forth in their documents. And, again, just because someone is sued, they shouldn't lose those rights to their documents until there has been some sort of a finding. And even if there is a finding made, so even if you get to trial and even if there is a ruling that a product is defective or has caused harm in some way, there is an appellate process, and sometimes an appeal after that one that is permitted in the Federal courts. And so information, again, should not be made public provided the corporate defendant can substantiate that there is a compelling need to maintain the documents as confidential. They just shouldn't be public, and to make them public before that finding has been made really would strip those corporate defendants of their property rights and their documents. It really isn't any different than someone's Social Security Number or having your own personal information made public, say your medical information made public. Corporate defendants have the same interest in privacy to their documents as you do in your medical records. And I think that that has to be respected in the process and has to be respected by the courts. Mrs. Roby. Thank you. Mr. Toobin, never ask a witness a question you don't already know the answer to, right? But I am about to ask you for your perspective, and I don't actually know what you are going to say. But you referenced in your oral testimony and in your written testimony about the opportunities that you have had to cover many very high-profile cases over your career, some of which have been televised and some which have not. And you were also present for the conversation we had with the first panel where you heard from Judge Story that it was mixed reviews on having cameras in the courtroom, but he specifically cited behavior. And so I am curious based on your experience in both televised trials and those that have not, how you perceived those cameras in the courtroom affecting behavior. Mr. Toobin. It is a great question, Congresswoman, and I can't, you know, give you a blanket answer for every case. And I certainly understood the perspective of the judge who said, well, maybe in certain circumstances people's behavior was affected. I am not going to lie to you, not least because the chairman told me it would be a crime if I did. But the O.J. Simpson case was one where, I think, the cameras affected it, and unfortunately that has had a poisonous effect on this whole debate, even more than 2 decades later. But with the exception of the O.J. Simpson case, which was so aberrational in so many ways, my impression has been that the cameras mostly are forgotten about after about a day in the courtroom, that people just go about their business. And I guess if there was one thing I objected to about the way the judge characterized it, he said, well, there was a possibility of a problem here and a possibility with the, you know, witnesses and with the judge. You know, I think that is a backward way of looking at it. I think the presumption should be on openness. The presumption should be that people get to see these trials, and if there are certain circumstances that require, you know, closing a courtroom to cameras. But the idea that every time the cameras have to justify themselves and have to prove a negative, that people will not be affected, I think that is not the right way to look at it. And I think the public will never get the appropriate access if that is the way we think about it. Mrs. Roby. Well, again, my time has expired, and I just want to thank the panel for, again, your candidness and appreciate you all taking the time to be here today. So thank you very much. Mr. Johnson of Georgia. I will now yield 5 minutes to the gentleman from Ohio. Mr. Jordan. Thank you, Mr. Chairman. I appreciate you having this hearing. Mr. Toobin, this morning on national television, you said in talking about the whistleblower complaint relative to the phone conversation the President of the United States had with the president of Ukraine, and the President's conduct relative to that country, you said ``Today's Justice Department has been corrupted.'' Is that an accurate representation of the statement you made---- Mr. Toobin. It sure is. Mr. Jordan. And you were making that relative to the complaint that was filed and that you guys were talking about in the, it was a group discussion on the show this morning. Is that right? Mr. Toobin. Yep. Mr. Jordan. Okay. Have you read the Department of Justice statement relative to this matter? Mr. Toobin. I have. Mr. Jordan. I might just read it here so we all have it. ``The President has not spoken with the Attorney General about having Ukraine investigate anything relating to former Vice President Biden or his son. The President has not asked the Attorney General to contact Ukraine on this or any other matter. The Attorney General has not communicated with Ukraine on this or any other subject, nor has the Attorney General discussed this matter or anything relating to Ukraine with Mr. Giuliani.'' You are familiar with that. Mr. Toobin. I am. Mr. Jordan. And you stand by your statement that the Justice Department---- Mr. Toobin. I sure do. Mr. Jordan [continuing]. Is corrupt, and it is based on what the whistleblower said in the complaint. Mr. Toobin. No, it is not based entirely on that. Mr. Jordan. I just asked you what you were talking about the whistleblower, and you said it was based on the whistleblower. You said the Justice Department is corrupt based on what you saw in the complaint. Mr. Toobin. It was based on the whistleblower's complaint. It was based on the partial---- Mr. Jordan. Well, it was based on the whistleblower's complaint---- Mr. Toobin. In part and if you let me finish my answer, it is also based on the further---- Mr. Johnson of Georgia. I am going to interject and caution my friend from Ohio that this subject is not germane to this hearing, and it is disruptive, and it is disrespectful to our process---- Mr. Jordan. Mr. Chairman, you have been through this---- Mr. Johnson of Georgia [continuing]. That we would have---- Mr. Jordan. Respectfully. Mr. Johnson of Georgia. Well, no, let me finish. Mr. Jordan. All right. Mr. Johnson of Georgia. It is disrespectful to the process that we would bastardize it for political purposes. It is within my discretion to allow you to continue along this line, and I am going to allow you to continue. But I just want to caution you that in the future, I am not going to tolerate this kind of imposition in my subcommittee hearings. Mr. Jordan. All due respect, it is entirely germane. Plus I would like my time---- Mr. Johnson of Georgia. It is my decision that---- Mr. Jordan [continuing]. Reset at 3 minutes, 35 seconds. Mr. Johnson of Georgia. I will restore. Well, you have no right to demand that. Mr. Jordan. The heck I don't. Mr. Johnson of Georgia. But I will---- Mr. Jordan. The heck I don't. Mr. Johnson of Georgia. No, you don't. Mr. Jordan. It was my time, and it was 3:35. Mr. Johnson of Georgia. No. Mr. Jordan. And I have every right to ask. The witness actually in his opening statement brought up Ukraine. I didn't. The witness said on national television the very statement I said that he said on TV, and he said he agreed that that was an accurate representation of what he said. He brought up Ukraine in his opening statement. Mr. Johnson of Georgia. I am going to---- Mr. Jordan. You know I have full discretion to ask the kind of question I want---- Mr. Johnson of Georgia. I am going to---- Mr. Jordan. And I need 3 minutes and 35 seconds on the clock. Mr. Johnson of Georgia. I am going to restore your time. Mr. Jordan. I appreciate it. Mr. Johnson of Georgia. I am going to ask you that in the future, you respect the integrity---- Mr. Jordan. This is---- Mr. Johnson of Georgia. Hold on. I want to respect the integrity of my subcommittee hearings and not bring in this extraneous issue that has---- Mr. Jordan. Would you yield for a question? Mr. Johnson of Georgia [continuing]. That has no---- Mr. Jordan. Would the chairman yield for a question? Mr. Johnson of Georgia [continuing]. That is not germane to this particular---- Mr. Jordan. This is the Judiciary Committee. We have a witness testifying in front of the Judiciary Committee who today on national television said the Justice Department is corrupt. If that is not relevant, tell me what is for this committee. Mr. Johnson of Georgia. No, this hearing is about secrecy in the judicial---- Mr. Jordan. That doesn't change the fact that the witness brought up Ukraine in his opening statement. This morning on national television he said the Justice Department is corrupt. Mr. Johnson of Georgia. Mr. Jordan. Mr. Jordan, if we are going to have a discourse, I am going to need for you to listen to me just as I am listening to you. I object to you bringing this subject into his hearing because it is not germane, but I am going to allow you to continue. Mr. Jordan. Thank you, Mr. Chairman. Mr. Jordan. But I am going to ask that in the future, you limit yourself to this hearing intruding with extraneous material such as this. And with that, I will yield to you---- Mr. Jordan. I will do my best, Mr. Chairman. Mr. Johnson of Georgia. Well, thank you, and I will yield you 3 minutes and 30 seconds to continue your questioning. Mr. Jordan. A witness who said this morning this morning the Justice Department is corrupt on national television, basing that, at least in part, earlier said, basing it on the whistleblower complaint. We need to remember a few things about this whistleblower. He has no firsthand knowledge of the phone call. He wasn't on the call. But we do know one thing about this whistleblower, Mr. Toobin. He had a political bias. We learned that from the inspector general. The inspector general told us there was indicia of arguable political bias. Do you know what that is? That is Washington speak for this guy hated Trump. And yet that is the basis for our witness telling us that the Justice Department is corrupt. Let me give you some facts---- Mr. Toobin. Would you like an answer? Mr. Jordan. I will in a second. Let me give you a few facts just to give a little context to this, facts that happened in the Justice Department prior to Bill Barr taking over the Justice Department, in fact, things that happened in the Obama Justice Department. Are you familiar with this, Mr. Toobin? That the Obama Justice Department FBI spied on two Americans associated with the presidential campaign? Are you familiar with that? Are you familiar with the fact that the Obama Justice Department FBI's opened a counterintelligence investigation on the Republican Party's presidential candidate and didn't tell the candidate they had an investigation, a counterintelligence investigation, opened on him? Didn't tell him what was going on? Are you familiar with the Obama Justice Department's FBI allowed Peter Strzok and Andy McCabe to run that investigation? Peter Strzok, the guy who said, don't worry, Lisa, we will stop Trump. Trump should lose 100 million to zero. Andy McCabe. This is not Jim Jordan talking. This is now the inspector general. The inspector general said Andy McCabe lied 3 times under the oath. The inspector general, Michael Horowitz, said that Peter Strzok should have never been allowed to head up that investigation, not because he had this bias against Clinton or bias against Trump in favor of Clinton, I should say, but because he ran the Clinton investigation. He should have been prohibited from running that. But the Obama Justice Department allowed it to happen. The Obama Justice Department allowed the Clinton Campaign, paid for a document, the dossier, to be used to go to a secret court, Mr. Toobin, to spy on one of the people associated with the Trump Campaign. And the former FBI director leaked information through his friend to the New York Times in an effort to get a special counsel, which he was successful in doing. And finally, I would just say this. On January 6th, the Obama Justice Department went to the Trump Tower when it was President-elect Trump, January 6th, 2017. They told the President-elect he was not under investigation, all the while trying to set him up as part of their Trump-Russia investigation. And, again, not my words. That was in the report released just 3-and-a-half weeks ago by the inspector general, Michael Horowitz. And yet today, based on a whistleblower that had no firsthand knowledge, wasn't on the phone call, has a political bias against the President, you are saying this Justice Department is somehow corrupt. Mr. Toobin. Well, if you want to just to talk about the whistleblower, one of the extraordinary things about the whistleblower was that in the whistleblower's report, there is a summary of the phone call between the President of the United States and the president of Ukraine. And, of course, as you point out, the whistleblower did not have access to the partial transcript that we have now seen. But notwithstanding the absence of firsthand access to that transcript, the whistleblower summary of that phone call was extremely accurate, which suggests a great deal of credibility on the part of the whistleblower, wouldn't you say? Mr. Jordan. How do you know it is extremely accurate? Mr. Johnson of Georgia. The gentleman's time has expired. Mr. Jordan. Mr. Chairman, are you kidding me? Mr. Johnson of Georgia. Yes, it has expired. The gentleman's time has expired, and let me say that---- Mr. Jordan. Are we doing a second round? Mr. Johnson of Georgia. It won't be a second round on this line of inquiry. Mr. Jordan. The heck it won't. Mr. Johnson of Georgia. No, it won't. And I want the gentleman to know that the next time he comes in---- Mr. Jordan. Would the Chairman allow one more question for Mr. Toobin? Mr. Johnson of Georgia. No, I want the gentleman to know that the next time he comes into my subcommittee and disrupts it in this way, that we---- Mr. Jordan. How is this disruptive? Mr. Johnson of Georgia. Yeah, because you are off topic. And so if this should happen again, I am going to be prepared through our rules to hold you accountable. And with that---- Mr. Jordan. Mr. Chairman, the rules allow me to ask the question I want to ask. The only thing disruptive is your behavior in limiting and interrupting my questions. It was my 5 minutes. You interrupted. I got one more question that I would appreciate being able to ask the witness. Mr. Johnson of Georgia. With that, the gentleman is no longer recognized, and I will proceed to---- Mr. Jordan. That is how the Democrats are going to---- Mr. Johnson of Georgia. I will proceed to round two of the questions, and I have a question for Hostin and Mr. Toobin. Gallup regularly surveys Americans' views of the Supreme Court, and for years, approval or disapproval of the Court has fallen on partisan lines. This partisan divide can depend on which part has the most representation on the bench or even the outcome of certain decisions from the previous term. I am interested in both of your views on whether the Supreme Court's secrecy plays a role in this divide and how providing video access would help ease the divide. Ms. Hostin. I think there is no question that providing more transparency will help that. And this is purely anecdotal, but I had the opportunity to interview Justice Sotomayor recently in New York about 2 weeks ago at the 92nd Street Y regarding her new book, her children's book. The audience was a sold-out audience. It was filled to capacity. And I can tell you while we did not address any current political issue, any current legal issue, as per the Justice's wishes, there was a line around the block of people that could not get into the event, and they also waited for 3 hours, those that were admitted to the event, for her signature on the books and just to meet her. And I stayed the entire event, and what I heard over and over again was she just seems like a regular person. She is so wonderful. She is so warm. They just wanted to get to know her. And I think given an experience like that, if more Americans were able to just see the justices on television, just to see them doing the business of the Court, if we were able to pull back the curtains, I think, as my friend, Jeffrey Toobin said earlier, we would get that reaction more and more and more. I mean, I think Justice Brandeis said it very clearly, ``Sunlight is the best disinfectant.'' I think we would have much more trust in our system if people were able to see the justices and get to know them, and see the business of the Court. Mr. Toobin. Mr. Chairman, I have a somewhat different view. I really don't know if more access would mean more respect for the Supreme Court. I don't have that ability to predict. My own sense is that the reason the Court has fallen in public estimation is that it is bound up, as so many institutions in our country are bound up, with the partisan divisions that are so familiar to us. It is increasingly seen as, you know, as driven along partisan lines as the Congress, as the race for the White House. And I think that is what really is driving the diminished respect for the Court. I see public access to the Court as an independent value. I don't really see it as an instrument to make the Court more popular. I think it is a good thing in and of itself. Mr. Johnson of Georgia. I am sorry. I want to thank the witnesses for coming today. Mr. Jordan. Mr. Chairman, you get two rounds of questions and I---- Mr. Johnson of Georgia. And with that, the hearing is adjourned. The hearing is adjourned. Mr. Jordan. We were told there was a second round of questions. This is truly unbelievable the way you guys do---- [Whereupon, at 4:13 p.m., the subcommittee was adjourned.] APPENDIX ======================================================================= [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] [all]