On the morning of Tuesday, February 14th, the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet convened a hearing to discuss issues of judicial transparency and ethics which affect the system of U.S. federal courts. Republican members of the subcommittee mainly focused on ways of making the Public Access to Court Electronic Records (PACER) system and a wide array of court proceedings more available to the public, while Democratic membership took ample opportunity to criticize comments made by President Donald Trump in recent months regarding certain judges and cases, including comments made during his campaign.
“In many ways the federal court system, not just the Supreme Court, tend to be very insular,” said Rep. Darrell Issa (R-CA), chairman of the subcommittee on IP and the courts, near the start of the hearing. “When it comes to transparency, American citizens have the right to know. When it comes to the ethics of the judiciary, we have an obligation. We cannot alone simply say that we’ll wait to impeach a judge from time to time, once every couple decades.” Issa brought up PACER and noted that, while the average American doesn’t know much about the system, the system was responsible for providing public access to U.S. federal court filings through the appellate process. He noted that the 10 cent per electronic page viewing fee for court records accessed through PACER wasn’t necessarily inappropriate, but the amount does beg the question of whether Americans should be able to access electronic records in a less expensive manner. Issa also said that the coming two years would be a time during which this subcommittee reasserts its obligation to oversee the courts, especially where it comes to proper vetting of judge competency and overall courtroom transparency.
“Our federal judiciary is the envy of the world,” said Rep. Jerrold Nadler (D-NY), the ranking Democrat on the subcommittee. This is why he was so worried about recent critical remarks made by Trump regarding his views on certain court proceedings, especially the President’s denigrating “so-called judge” remark hurled recently at Washington federal judge James Robart. “It’s not uncommon to speak out, but never before has there been such a brazen attempt to erode public confidence of the law,” Nadler said. Later on during questioning, Rep. Andy Biggs (R-AZ) would note that such tension between the executive and judicial branches go back to the earliest days of the United States, perhaps most notably in the landmark Supreme Court case Marbury v. Madison. “It’s interesting to hear folks being critical because of comments he may have had about a separate co-equal branch of government,” Biggs said. “This kind of tension is not new, it’s as old as the republic.”
Biggs made these comments after a slew of Democrat subcommittee members used their allotted time to explore issues posed by President Trump in various regards. Rep. John Conyers (D-MI), the ranking Democrat on the full House judiciary committee, appeared at the hearing to offer his thoughts, most of which were about Trump. “Trump’s personal attacks against individual judges and his disrespectful comments threaten the fundamental principles of a constitutional form of government and an independent judiciary,” he said. He asked for his friends on the other side of the aisle to join him in condemning Trump’s recent comments, although such bipartisan commitment never truly formed during the day’s hearing. Rep. Ted Deutch (D-FL) said that he “cannot help feeling a twinge of regret on our focus this week when the executive branch has such glaring problems.” Deutch was most concerned with the President’s business interests and the potential they serve for diverting the public good for personal gain through foreign influence. Rep. Hakeem Jeffries (D-NY) said that the timing of this hearing was “perplexing” given the “swamp of corruption percolating at 1600 Pennsylvania Avenue… It’s impossible to figure out where the Trump family business ends and the White House begins.” Jeffries wondered why they should be focused on PACER at all given intelligence reports of Russian interference in the recent election. “It’s amazing that we have a President helped by the Russians, who benefitted from the fake news industry, who lost the popular vote, the administration is shrouded in scandal and he calls an Article III member of the judiciary a ‘so-called judge.’” Immediately following Biggs was Rep. Eric Swalwell (D-CA) who voiced his agreement with Supreme Court nominee Neil Gorsuch, who reportedly called Trump’s recent comments on the judiciary “demoralizing” and asked the panel witnesses whether they agreed with that sentiment.
It’s not readily apparent that any of the panel witnesses appearing during the day’s hearing was called forth to give their opinion on Trump’s recent comments. Mickey Osterreicher, general counsel at the National Press Photographers Association (NPPA), used his testimony to discuss the opportunities posed by transmitting court proceedings through electronic audio and video recordings. “In an era of fake news and alternative facts, there’s no better way to promote transparency than to expand electronic coverage of court proceedings,” Osterreicher said. Having covered explosive trials like the Attica prison guard trial and the OJ Simpson criminal trial, his feeling was that the expansion of electronic coverage within the courtroom itself would make the participants more conscientious and give a better opportunity to observe the workings of the judicial system. He cited the 137,000 YouTube connections and the 1.5 million people tuning into CNN, both groups listening to audio broadcasts of court proceedings involving Trump’s executive order on Middle East immigration held in the U.S. Court of Appeals for the Ninth Circuit (9th Cir.), as evidence that the American public wanted to consume such electronic content. “People in society do not need infallibility but it’s difficult for them to trust what they can’t see,” Osterreicher added.
The panel witness most interested in potential improvements to the PACER system was Professor Thomas Bruce, direction of the Legal Information Institute at Cornell Law School. According to Bruce, criticism of PACER focuses on the barrier to information erected by electronic viewing fees, outdated technology used by the system and the split personality created by PACER’s dual functions as a case filing management system as well as a data publishing system. “Equally, there’s a number of things that PACER is not,” Bruce added. “It’s not transparent. It’s not an adequate facility for research on federal courts, it doesn’t provide access to bulk data… Third, PACER is not an effective protector of privacy, it lacks a system of unique identifiers.” Steps taken to improve access to and the transparency of PACER included consideration of removing or paring back per page viewing fees, making PACER’s business model more transparent to Congress and the public, increased user input in the design of PACER’s data publication system and a new home for the data publishing operation, perhaps with the U.S. Government Publishing Office (GPO).
“The constitution works and the judiciary it established works because we believe that it works,” said Professor Charles Geyh, the John F. Kimerling Professor of Law at Indiana Law School. “If we lose that confidence, the role that the Framers envisioned for the judiciary in providing a check on other branches will be lost.” Geyh, who served as the counsel for the House courts and IP subcommittee 25 years ago, voiced his concerns over the current judicial disqualification process in which judges had a say in their own disqualification. “Judges are asked, ‘Are you too partial to sit?’ and the person who answers that is the judge who might be too partial to sit,” Geyh noted.” Additionally, of the many judges working in the federal court system, the most influential nine justices sitting on the Supreme Court weren’t subject to the same code of ethics. This lack of a strict code leads to flaps like Justice Ruth Bader Ginsburg’s comments on President Trump’s campaign last July which she quickly recanted. Geyh also voiced his support for efforts to increase the transparency of financial disclosures from the judiciary, which were essential to the American public, lawyers and watchdog organizations alike. “We still don’t have a system in place for the public to get ready and open access to disclosure statements online,” Geyh said.
Of the ideas promoted by the day’s panel witnesses, perhaps the most contentious was Osterreicher’s support for increased electronic communications, especially where it involved cameras in the courtroom. Issa noted that video has already impacted court proceedings in a positive manner with video depositions by witnesses as admissible evidence. Rep. Bob Goodlatte (R-VA), chairman of the full House judiciary committee appearing at the courts and IP subcommittee hearing, wondered aloud how privacy could be protected if cameras were present. “I can’t imagine in oral arguments we would see that private information,” Osterreicher responded.
Aside from privacy, some subcommittee members were concerned that introducing cameras into the courtroom would encourage grandstanding and “playing to the camera.” Rep. Tom Marino (R-PA) particularly called it a “dangerous, dangerous area in terms of rights and terms of law.” While Marino had no problem with cameras at the appellate level, he was concerned that cameras in trial courtrooms could create a circus-like atmosphere of entertainment. Throughout the hearing, Osterreicher treated such assertions respectfully while also maintaining that speculation of such circus-like atmosphere were largely unfounded and flew in the face of the constitutional ideal of the American courtroom as an open forum. “All are in agreement that courtrooms are open to the public, blaming the camera for the circus-like atmosphere is shooting the messenger,” Osterreicher said. He used the OJ Simpson trial, notable for the media frenzy surrounding the court proceedings, as an example of how fears over cameras in the courtroom can sometimes be overblown. Osterreicher noted that much of the frenzy created by the case was caused by media interaction with the case outside of the courtroom. By contrast, cameras were in the courtroom in the Simpson civil trial that followed the criminal trial and media commentation and spin was much less prevalent during that second trial. Where cameras might have a chilling effect on testimony given by child witnesses or victims, Osterreicher noted that the presiding judge has the discretion to disallow camera recording of those victims to prevent such an effect.
In his closing statements, Issa did come back around to comments about Trump and noted that “it is a fragile court.” He acknowledged that 140-character statements by an individual could have a poor impact on the court’s perception, just as an inability to adequately discipline an incompetent or biased judge would do the same.