[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
         
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        Available http://judiciary.house.gov or www.govinfo.gov
        
                               __________

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                       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......................................60
Mr. 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.]
      

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