Yesterday the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet held a hearing on judicial transparency and ethics. Although three witnesses provided testimony about concrete areas of reform, recent executive branch controversies overshadowed the ostensible purpose of the hearing.

Rep. Jerrold Nadler (D-N.Y.) spoke out against what he characterized as President Donald Trump’s recent attempts to “delegitimize the judiciary.” Similarly, Rep. John Conyers (D-Mich.) recalled Trump’s allegations of bias against Judge Gonzalo Curiel during the presidential campaign. Conyers urged the subcommittee to “do everything possible to make sure the system is not undermined.”

In another allusion to recent controversies, Nadler suggested that the live-stream of the court of appeals hearing on Trump’s executive order restricting entry to the United States by certain noncitizens shows “great interest in wider access to court proceedings.” One of the witnesses, Mickey Osterreicher, general counsel for the National Press Photographers Association, later noted that the argument garnered 137,000 connections to the court’s audio stream, 1.5 million viewers on CNN, and many more on cable broadcasting, local news and other streaming websites.

Nadler on Monday had co-sponsored a bipartisan Eyes on the Courts Act, which would required that cameras be permitted in the Supreme Court and all other federal appellate courts.

Cameras in the court

In his opening statement, Osterreicher argued that there is “no better way” to combat an “era of fake news and alternative facts” than by expanding electronic coverage. The objective, he continued, is not to satisfy viewer curiosity but to maintain the right of people to monitor the government.

Although some members expressed concerns that advocates and judges might play for the cameras, most seemed satisfied with Osterreicher’s claim that previous experiences with cameras in appellate courts – including a 10-year pilot program in New York – did not bear out those concerns. In response to suggestions that cameras in trial courts might pose more problems, Osterreicher argued that decisions about whether to allow them should be left to the discretion of trial judges.

Rep. Tom Marino (R-Pa.) worried that giving such latitude to trial judges might not adequately protect victims and children. He also wondered whether cameras might taint trials, pointing to the trial of O.J. Simpson, at which he said lawyers and “even the judge” spent “too much time” looking at the camera.

Osterreicher observed that other factors affected the Simpson trial, and resisted the impulse to “blame the messenger.” He pointed to the trial of the Oklahoma City bombers as an example of a well-conducted trial that featured closed-circuit cameras broadcasting to a local audience. Rep. Raul Labrador (R-Idaho) wondered whether this example might in fact support Marino’s point, because the trial was not televised nationally.

Not all Republicans took issue with cameras in trial courts. Rep. Ted Poe (R-Texas), who has also introduced a bill on this topic, offered his experience as a prosecutor in the “greatest judicial system in world.” “Why would we not want the public to see” what happens, he asked, “instead of what some reporter thinks?” He suggested that the recent district-court argument over Trump’s immigration ban was “a perfect example” of a case that should have been televised.

Improving the PACER system

Thomas Bruce, director of the Legal Information Institute at Cornell Law School, spoke on a less controversial topic: improving PACER – an electronic database of federal court documents, which does not include any documents filed in the Supreme Court.

Bruce noted that PACER charges fees for access to the public record, barring access for many, and that revenues from these fees exceed PACER’s operating costs. Bruce suggested that the fees be eliminated or reduced to the level needed to cover operating expenses.

Bruce added that PACER’s technology struggles to stay up to date, which reduces transparency. For instance, the system’s bulk data and search mechanisms are not reliable enough to be used by outside researchers or by Congress. Bruce suggested separating the publishing aspect of PACER from the filing system used by attorneys and courts and entrusting it to an organization that focuses on data publishing. He did not mention incorporating Supreme Court documents into the PACER database.

Institutional transparency

The discussion of judicial ethics touched upon the impeachment process, health and safety standards (“Alzheimer’s is real,” stated the subcommittee chairman, Rep. Darrell Issa (R-Calif.).), norms for recusal and financial disclosures, and ethical codes of conduct. In his testimony, however, Charles Geyh, a professor at Indiana University Maurer School of Law, largely stuck to more general statements about the judiciary’s perceived integrity.

Geyh asserted that “the Constitution works and the judiciary works because we believe it works.” In contrast with the legislative and executive branches, the judicial branch receives its legitimacy from its perceived independence. Standards of recusal, conduct, and disclosures are important because they contribute to this perception. Geyh also sought to distinguish between “robust criticism” and “assaults” on the judiciary. Asked by multiple members about Trump’s recent criticisms of judges, Geyh suggested that although these specific instances may not have damaged the judiciary, social science suggests that “sustained attacks” over a long period will.

Geyh called “terrific” the code of conduct issued by the judicial conference in 1973, but he expressed concern that its provisions did not apply to the nine most powerful judges in the federal system. Although he acknowledged that the Chief Justice has promised that the justices “consult” the code, he maintained that mere consultation is insufficient. As an example, Geyh referenced Justice Ruth Bader Ginsburg’s controversial comments about Trump, which she later said she regretted after the code had been brought to her attention.

Discipline has been improving as a result of congressional attention to the issue, but Geyh contended that financial disclosures would further help the public, lawyers and watchdog organizations; concerns for judges’ safety after disclosures are “best resolved by redaction rules,” not by “hiding the ball,” he maintained.

Asked by Conyers if Congress should consider legislation, Geyh responded that he thought the judiciary should promulgate its own codes.

The executive branch

Some Democratic representatives used the hearing as an opportunity to level criticism at the Trump administration rather than to reform the judiciary. For instance, Rep. Ted Deutch (D-Fla.) said the topic of the hearing gave him a “twinge of regret,” given the president’s own ethical concerns involving family businesses and dealings with the Russians. Deutch said the subcommittee should be investigating these “more pressing issues of transparency and ethics” and criticized the subcommittee for seemingly being “determined to ignore” them. Rep. Hakeem Jeffries (D-N.Y.) called the timing of the hearing “perplexing,” what with the “swamp of corruption” revealed by the recent resignation of the president’s national security advisor.

Rep. Scott Biggs (R-Ariz.) pushed back at the various concerns expressed about the relationship between the president and the judiciary. He argued that “tension among the branches is nothing new” and “has been present in America since conception.” Biggs offered the presidencies of Andrew Jackson, Thomas Jefferson and Franklin Roosevelt as previous examples of such tension.

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Issa closed by suggesting that Osterreicher seemed to have made his case about the value of cameras in appellate courts, but that there was “less agreement” on the subcommittee about trial courts. He thought Bruce had made a “compelling case” about reforming PACER and indicated that he would soon be offering legislation to extend the Data Act. He thanked Geyh for the discussion, which highlighted the potential fragility of a judiciary under assault.

In opening, Issa had indicated that this would be the first of many hearings on the topic.

Recommended Citation: Andrew Hamm, House members discuss judicial transparency under shadow of recent executive statements, SCOTUSblog (Feb. 15, 2017, 3:32 PM), https://www.scotusblog.com/2017/02/house-members-discuss-judicial-transparency-shadow-recent-executive-statements/