Skip to main content

tv   House Appropriations Subcommittee Hearing on Supreme Court Budget  CSPAN  March 12, 2019 12:09am-1:31am EDT

12:09 am
12:10 am
>> it's not every day that i can -- but today both justices and i have something in common. this is the first supreme court hear -- >> chairman of the subcommittee and this is the first time you are testifying before this subcommittee. i want to welcome you both. this is the first supreme court public hearing since 2015 and as chairman of this subcommittee it is my intent to hold a hearing with the supreme court more often to does the resources needed for the highest court and hear your thoughts regarding america's court system. i think hearings such as this one are a great way for the public to get more exposure to
12:11 am
our third branch. today's hearing provides us with an opportunity to exchange ideas, discuss issues and get a better insight into the judicial branch. the exchanges between our two branches are important as each branch plays a role in our government. while we must collaborate with one another, we must also preserve appropriate autonomy. our two branches walk a delicate line and we must work together but remain separate in order for our democracy to uphold the intentions of our founding fathers. i would like to thank the justices for their recent budget request. i'm always impressed with the court's dedication to cost containment and to safe taxpayer dollars. and i'm resisting the urge to say that's why we don't have nice things.
12:12 am
i am still impressed with the court's dedication to cost contain and desire to save taxpayer dollars. as well as their efforts to use inhouse staff to manage it projects when possible. this does not go unnoticed. your mission is critical to the pillars of our nation and we thank you for your very effective use of the taxpayer dollars. the supreme court's fiscal year 2020 request includes funding for the supreme court justices, employees, as well as rent. this represents a 3.5 increase over the fiscal year 2019 budget. i look forward to hearing from you on what we hope to accomplish with this funding. taking a step back, congress provided an increase of
12:13 am
5.6 million for 34 new positions to address security needs. this was a critical request and i'm pleased that congress was able to fund it. the safety of the justices as well as those who work and visit the supreme court should not be at risk. let's continue to keep this dialogue on the ongoing security upgrades and additional resources needed to maintain a secure and welcoming supreme court environment open. i want to briefly speak about an issue i care strongly about in providing the american people with more access to the supreme court. as justice bran ice wrote, sunlight is said to be the best of disinfectants. it still rings true. you can watch congress and the executive branch in action on c-span. that's an important part of making our nation open and transparent to all people. but one government constitution remains closed to the public eye
12:14 am
and that's the supreme court. these decisions on major cases from brown v. board of education to bush v. gore has shaped american society and changed history. unfortunately due to practices and policies, we have no video record of these historic decisions. in 2019 with so much new and innovative technology at our fingertips it is time we should use every tool available to preserve america's judicial history. beyond cameras in the court, most americans have no idea how supreme court proceedings even work. i had the opportunity to be one of all the few who got to sit in on the court proceedings when i attended oral arguments. this is an opportunity that should be available to all americans. in the past, arguments on major equality have drawn crowds causing people to line up in advance in order to gain access to the court. it's not unreasonable for the american people to have an
12:15 am
opportunity to hear the decisions. the decision to release same day audio highlights the fact that the supreme court has the technological capability to share audio with the american public. i think it's important for our two branches to keep an open dialogue and discuss issues when necessary and not only once a year or so. so please know we're always happy to meet with you and discuss your concerns. justices, we look forward to hearing for you about if resources you need to carry out your constitutional responsibility and look forward to working with you in congress. i would like to recognize the ranking member for his opening remarks. >> thank you, chairman. welcome. it's good to have you with us today. independent judiciary trusted to interpret the laws is
12:16 am
fundamental to fulfilling the founding father's vision for this country. our system of checks and balances ensures that government for and by the people. and we're thankful for your role in that. as a coequal branch it's valuable to hear from you today. these hearings are one of the few instances that we get to interact with our two branches of government and have the opportunity to directly ask questions and such. as we work together today to further examine the court's needs, i want to thank the chairman for assembling this hearing today. though the supreme court's budget request is not large at all in comparison to many of the other federal programs that this committee will hear from in the weeks ahead, i'm pleased that you're both here to testify. i'm appreciative that the court has limited its request for resources. i'm committed to looking at all of our spending through a thoughtful lens.
12:17 am
with the federal debt exceeding $22 trillion, it's especially important that we all work together to make steps to put our fiscal house back in order. and we're grateful for your effort in that as well. keeping that in mind, we will work to make sure that the court has the necessary resources to fulfill your constitutional responsibilities. justice kennedy and briar appear before this committee several times and we always appreciated their conversation, their humor, their dialogue and certainly their guidance that they shared with us. and just the same, we look forward to your testimony today and your insights of the operations of the court and grateful for your appearance before us. thank you, mr. chairman. >> thank you, sir. i would now like to recognize the ranking member of the committee for her testimony. >> i'd like to thank you for holding this hearing for financial services today on oversight of the highest court in the land. i'd like to add my welcome to our witnesses, justice alito,
12:18 am
and justice kagan. it's an honor to have both of you appear before us. the supreme court is vital to our system of government in ensuring the survival of our republic. this has been a particularly evident in recent years. one of the responsibilities the congress holds is the power of the purse and that's why we're here today. i hope to learn more about the supreme court operation and funding requirements for the fiscal year 2020. this is a rare, u.k. opportunity as mr. graves said. and so we take it very seriously. thank you, again. thank you, mr. chairman. >> i want to thank you. i would now like to recognize justice alito for his testimony. >> supreme court's budget
12:19 am
request for fiscal year 2020. is the microphone on? yes. as was mentioned, justices kennedy and briar appeared here many times in the past. this is the first appearance for justice kagan and me. we are rookie and is i am sure when i get back to the court, i will hear immediately from either justice kennedy or justice briar or perhaps both of them that in all the times when they appeared here, they never broke any glass or spilled water. but as i said, we are rookies. you have to indulge us a little bit. in any event, as in past years, our budget requests consistent of two parts. we will present the first part of the request today. this part addresses salaries and expenses of the court. the architect of the capitol
12:20 am
will submit a second written statement on the second part of the request which concerns the care of the building and the grounds. before presenting our fiscal year 2020 request, we would like to express our appreciation for congress's approval of our funding request for fiscal year 2019. we recognize that congress and the subcommittee face a difficult task in allocating a limited amount of available money to fund a wide-range of government activities. the judiciary's entire budget request is small compared to the overall federal budget representing less than 0.2 of 1% of federal funding and the supreme court's request represents only about 1% of the judiciary's budget. but although our request is tiny in relation to the overall budget, we appreciate the value of every dollar of funding we receive. we're also grateful for the
12:21 am
confidence in the ability to manage those funds efficiently. we remain fully committed to prudent fiscal practices. i should note that our fiscal year 2019 request following guidance from the office of management and budget did not include funding for the cost of living adjustment for federal employees enacted in the most recent appropriations legislation. that adjustment will likely cost the court an additional $1 million annually. to accommodate that increase, the court has reduced spending by revising existing contracts and cutting back on other discretionary spending. we hope that these cost-cutting measures will allow us to forego requests for additional funding related to the cost of living adjustment. we do do not have the capacity to reduce our mission or reduce our functions. we have no control, for example, over the number of petitions for review that are filed each year.
12:22 am
nevertheless, we continuously seek out ways to make our operations more efficient. we would also like to thank the members of the committee for providing the court with a substantial amount of additional funding last year. we are carefully and deliberately putting those funds to work and that was for security -- additional security purposes and we are carefully and deliberately putting those funds to work based on a top to bottom review of our current practices by highly regarded and experienced security experts. the money you have provided will be used efficiently to expand and improve our physical security and our cybersecurity. if we find that additional money is necessary to ensure the safety of the justices, court staff, and many visitors received in our building every year, we will inform the subcommittee as soon as possible. i would be happy to refer members of the committee and
12:23 am
your staff following the hearing to appropriate court staff if there's a desire to discuss those security issues in greater detail. >> for fiscal year 2020, the court is requesting money to cover existing activities. we're not requesting any new increases. the fiscal year 2020 request is $90 million consisting of $3 million in mandatory experiod temperatures and $87 million in discretionary expenditures. the total request is $3 million higher than the amount provided in the last fiscal year. half of this increase is due to an expected change in agency employer contributions to the federal employees retirement system pursuant to guidance from the office of management and budget. most of the court's budget is devoted to personnel costs. approximately 80% of the total
12:24 am
request is for komp sayings and benefits of current employees. we have not requested a new nonsecurity related position over the last ten years. instead, we have successful utilized existing personnel to accommodate an increasing workload. for example, we recently implicated a new electronic case filing system. it provides easy access to all of the court's case documents including briefs, orders and opinions without logging in or downloading additional software and there are no charge associated with the use of this facility. it has been publicly accessible since 2017 through a link on the court's website. by being and maintaining this system in house with existing staff, the court saved 2 million taxpayer dollars. in addition to accessing all case-related documents, the public may use the website to access full transcripts of oral
12:25 am
arguments on the same day they occur and audio of the arguments by the end of the week in which they take place. we have also recently revamped the court's website to make it more user friendly and to highlight important information like the current term calendar and upcoming cases. as a result virtually every aspect of the court's work is easily accessible to anyone with internet access. last year, 19 million people visited the court's website, a 30% increase over the previous year. the supreme court building is also a popular attraction and forum for civics education here in washington. the website's calendar lists the building's public hours and an online schedule of lectures in which the history and the role of the court is explained. last year 421,000 people visited the building, and nearly
12:26 am
one-third of those visitors attended one of the free lectures or tours. our request also includes $1.5 million of no year funding for regular upgrades to our it systems many of which have multiyear upgrade cycles. the court reduced the request for this annual funding in fiscal year 2018 by $500,000 and the fiscal year 2020 request maintains that reduction. >> the annual savings are a direct result to virtual workstations which is reduced upgrade and maintenance costs. we will continue to monster the fund balance to ensure it's adequate to make our long term needs. when the public interacts with our system, they see the
12:27 am
substantial resources that congress provides to the judiciary whether it is courthouses, libraries, up-to-date information, technology, or the thousands of staff who make the courts run smoothly and efficiently. the result is that these observers, along with many others around the world, see a tangible, powerful example of the nation committed to the rule of law. on behalf of the chief justice and the other associate justices of the court, we would like to extend our insere thanks to the members of this subcommittee for your continued confidence and support. this concludes our summary of our request and we would be pleased to respondent to any budget-related questions that the members of the committee may have. >> thank you, justice. we appreciate. you heard me mention in the opening the desire of many to
12:28 am
have video as well from the supreme court. in the past we have had this debate and i've come to the conclusion, clearly it's your decision and i believe in the independence and the autonomy of a separate branch. i just want you to know there are a lot of folks who can't get in the supreme court to watch these arguments. and the case i mention and a few others, brown v. board of education, there were historic arguments made that only a few -- perhaps a few hundred people could watch in person. and i know that there are valid reason, behavior change, editing and so forth, we flub up a lot here, but we're on c-span and so our mistakes are live. and while in a democracy as you know, the trains don't always run on time, we don't always look our best and maybe it has a
12:29 am
negative impact. the last time we had the discussion, it was the anniversary of the release of mr. smith goes to washington. the reason i bring that up is, when that movie was released it was screened before an audience in the u.s. senate. and they didn't like good. the irony was, it was also screened in moscow and berlin. and they made the decision not to show it in their countries because they thought it made us look too good. the beauty is in the eyes of the beholder. i would just like your thoughts on, if there's an evolving sense within the court of whether or not to expand to at least some limited video feeds of the arguments. >> the first thing i think i should say is that all of my colleagues and i share your interests in making our proceedings and everything that the court does as accessible to
12:30 am
the public as we possibly can, consistent with the performance of our pairment function, which is, pairment function which is to decide cases in the best possible way. and i was thinking about this issue of access, before coming over here, and what i'm going to say will date me, but what occurred to me was how much more accessible the supreme court is now than it was when i started out as a lawyer. and even before that, when i was interested in the work of the supreme court, when i was in college, and even in high school. if someone back in those pre-internet days, wanted to read an opinion that was issued by the court, a few years ago, it wouldn't be that easy to find a library with reports of the supreme court. certainly, the little municipal library where i grew up didn't have that. so you would have to find a law
12:31 am
library or a big library that had the u.s. reports or one of the commercial services, and then if you wanted to take a copy home and read it and study it, you would have to, you might be able to make, what we called in those day, a xerox copy, by feeding money into a machine. now, every opinion that we issue is instantly available on our web site. if you read an article in the paper about a decision that had just been handed down, and you wanted to see exactly what the court said, that would be even more difficult. you would have to find a law library with a subscription service called u.s. law week, and that was an expensive subscription service. and then you might get a little account of the argument, if it was an important case. and you would be able, within about a week, to read the court's opinion. now, if you wanted a transcript, that would be extraordinarily difficult. you would have to find a very good law library, and you wouldn't be able to get that for
12:32 am
years, if you wanted to read the party's briefs, that would also be extremely difficult. now, all of that is available free of charge to anybody who has access to the internet. we issue a transcript of all of our oral arguments on the day when the argument takes place. and today, it used to be a few years ago, that the person, the justice asking a question, wasn't identified in the transcript. now all of the justices are identified. so you can see exactly what was said. every single word. and we release the audio of all of our arguments by the end of the week. but then we get to the issue, on which there's a lot of interest, and that is televising our arguments. and i recognize that most people think that our arguments should be televised. most of the members of my family think that arguments should be televised. i used to think they should be televised.
12:33 am
when i was on the third circuit, we had the opportunity to vote on whether we wanted to allow our arguments to be televised. and i voted in favor of it. but when i got to the supreme court, i saw things differently. and it wasn't because i was indoctrinated or pressured by my colleagues, but i came to see, and i do believe that, allow can the arguments to be televised would undermine their value to us as a step in the decision making process. i think that lawyers would find it irresistible to try and put in a little sound bite, in the hope of being that evening on cnn, or fox, or msnbc, or one of the broadcast networks. and that would detract from the value of the arguments in the decision making process. >> that sort of thing never happens here. >> you know, i recognize times
12:34 am
change. and i don't know what our successors years from now will think or maybe even next year, but it has been a while since the members of the court collectively have discussed this issue, but it has been our consensus for a while that this would not be. although we want as much access as possible, we don't want access at the expense of damaging the decision-making process. >> justin kagan, your thoughts. >> thank you, very much, chairman and if i could just thank all of you for the invitation to be here, we very much appreciate it, mr. alito and i. as to this question, i find it is a very difficult question, and like justice alito, my views on this question have somewhat evolved over time, and if you will agree to let me get to the place where i tell you about the cons of cameras, i will start by telling you about the pros, and very much sympathizing with some of the things that you said,
12:35 am
chairman quigly, because i think more than just transparency for transparency's sake, the good of having cameras would be the people would see an institution at work, which i think does its work pretty well. when i was solicitor general, one of the jobs of solicitor general, in addition to arguing every month, is that you're always there when members of your office argue. and so the time i was solicitor general, i probably sat as a spectator for about 75% of the supreme court's arguments, and i was constantly impressed by how the court went about its business. that it was thoughtful. and it was probing. and it was obvious that the justices really wanted to get things right. and it's no small benefit if the
12:36 am
american public were able to see that. because faith in institutions of governance is an incredibly important thing. and for me, the greatest positive of having cameras would be that it would allow the public to see an institution working thoughtfully and deliberately and very much trying to get the right answers, all of us together. but having said that, i will wholeheartedly agree with justice alito, that the most important thing is, that the institution continue to function in that way. not the people see it, if the seeing it came at the expense of the way the institution functioned, that would be a very bad bargain, and i do worry that cameras might come at that expense. you know, there's that, i think it's a principle of physics, i think, which is about how when you put the observer, when the
12:37 am
observer comes into it, the observed then changes. and you come into the congress, and you know, if you all were given truth serum, i think some of you might agree that hearings change when cameras are there. now, i have to say i think they might change in the court in subtle ways, i don't think all that many people would grandstand. i hope that my colleagues and i would not do that. i think we would filter ourselves in ways that would be unfortunate. in other words, the first time you see something on the evening news, which taken out of context suggests something that you never meant to suggest, suggests that you have an opinion on some issue, that you in fact, don't have, but that you, you know, when i come into the courtroom, i play devil's advocate, i probe both sides hard, and i challenge
12:38 am
people in ways that might sound as though i have views on things that i in fact, do not, just because that's the best way of really understanding the pros and cons of a case. and i worry that that kind of questioning, which i think we all find very conducive to good decision-making, would be damaged if there were cameras. so i think, as justice alito expressed, i think this is a hard issue. i think this are things to be said on both sides of it. and i do want to emphasize, as he emphasized, that we haven't spoken about this together, as a conference since i've been at the court, but i think that there is real value to being deliberate and to being careful, and to not doing things that we would later regret in terms of how the institution operates. and i will say just one last point, in addition to all the
12:39 am
things that justice alito said about the ways in which we are transparent, i think that the most crucial way that we are transparent is that all our decisions get made with reasons. in other words, you always know or almost always, when we make decisions, why we are making them, and the views of the various justices of the court. that's the most important thing. far more important than the arguments which in fact play a very limited role in our decision making process. >> thank you so much. >> your republican leader in the interior committee, momentarily. >> thank you, sir. >> thank you very much for recognizing me out of turn. and when i'm through asking my question, and i get up to leave, it is no respect to me but mr. amity sitting down there holding court for me so i can get back to mine.
12:40 am
as a former prosecutor and aging trial lawyer, this appearing before 2/9ths of the court is probably the best it will ever get for me but i appreciate your transparency issue and i preesh what ur appreciate what you're doing making the workings of the court available and the vast majority of us who will never appear in the supreme court, and the inferior court, the bankruptcy court, and the trial courts and the pacer court, we have to pay money to get those things. what impact do you think the supreme court is making this available for free has had on the transparency of the court, if you will, and allowing people to have some input, or be able to see, without the use of cameras, able to see into what you do? >> well, i hope that the electronic filing and the other measures that have been taken in recent years will increase understanding of the work of the court. other than hearing our voices,
12:41 am
and immediately, or seeing our faces with our lips moving, the public can see everything that goes on in the court. from the filing of a petition for certiorari, until we issue an opinion deciding a case. that's a tremendous development. and i think it is good that all of that is available to the public free of charge. because we do want the public to understand what we do, to the greatest extent possible. we also receive a great many visits during the course of the year from students ranging from sometimes even elementary school students, to groups of law students, and i think my colleagues and i like the opportunity to speak through them, and to explain to them what we do. because it is important in a democracy for the public to understand what all of the
12:42 am
institutions do. >> justice kagan? >> i agree with everything justice alito said on that, i mean the electronic filing system that the court has put into place, in the last year or two, has made i think an enormous difference in, for people who practice before the court, but also people who are just interested in the court. and we were able to do it with the appropriations that you gave us, and a tremendous staff that put untold hours into that project, and so the justices are very appreciative of that. >> i for one would disagree with the chairman in that, i don't believe that more visibility and cameras in the courtroom would be any good. i agree with your assessment, just in my limited time here in the house, people are changed beings when they get in front of the camera, and not all for the good. but i'm certainly interested in the transparency and the education of the public as to
12:43 am
the clegeality of which the nine of you enjoy, and i think it gets ripped apart at times when people see 5-4 decisions, it is not us against them, it is the hard work you put into it asking those questions and any way we can get the public to visualize that without necessarily seeing it on camera, i'm all for it and i think the rest the the committee is helping you get that accomplished in not only the supreme court but the lower courts as well. >> you put your finger on something we find a little bit frustrating because we are a very collegial institution, we like each other quite a lot, and i think people think of the 5-4 decisions as, you know, sort of the only thing we do. in fact, justice alito and i agree with each other far more often than we disagree with each other. and one of the things i think as we talk to groups, whether in law schools or elsewhere, i think all of us try to emphasize this, the extent to which the court really functions as a unit, and you know, of course,
12:44 am
there are going to be cases on which, in which different views, about how to do law, how to interpret the constitution, put us in opposition to each other, but you know, 40, 50% of the time, we're unanimous, which is sort of an amazing thing, given that we only take the hardest cases, cases on which there are splits in the courts below. and another 30 or 35% of the time, we're split in all kinds of random and different ways. so i think it is one of the things that we would like to make clear to people is how much of what we do does not follow this stereotype of the perpetually divided court. >> would you care to respond? >> well, i grey agree with justice kagan said, and it is an aspect of our work that is
12:45 am
overlooked. since understandably because the most controversial cases tend to be the ones where we're the most closely divided. and we have developed a very open style of debating issues back and forth among the justices when there's a majority opinion and a dissent. we argue the issues robustly. let me put it that way. and we don't, increasingly, we do pull any punches. and we don't take it personally when one of my colleagues attacks my reasoning, and says it doesn't make any sense, i don't take it personally, and i hope that the same is true when i reciprocate. but i think sometimes people who read what we write may get the wrong impression that we are at each other's throats in a personal sense. and that is certainly not true. and this is not just something that we say for public consumption. this is the complete truth.
12:46 am
>> i yield back my time but i'm all out, mr. chairman. thank you very much. and their for the opportunity to be here today. >> thank you, sir. mr. cartwright? >> thank you, mr. chairman. and thank you to our witnesses for appearing today. justice alito, justice kagan. justice alito as the lone pennsylvanian here on this panel, it is a pleasure to have a representative of the third circuit here. it's hard for us to understand those second circuit accents but it is nice to have you here, too, justice kagan. i know i speak for all of us here on the appropriations committee, and all of us in congress, when i say that we honor and fight for the independence of the judiciary. and as part and parcel of that, we fight for the security of the judiciary. and i want to talk about that a little bit. between fiscal years 2018, 2019, the congress approved $5.6
12:47 am
million for security upgrades and modernization, along with an additional 34 positions for the supreme court. i'm pleased congress was able to accommodate the request, and rest assured that we will continue to review and regard security requests coming from the supreme court with, as a top priority. first question is, does the fiscal 2020 supreme court budget properly cover your security needs? are you getting what you want? >> we believe that it does. and we cannot express strongly enough our appreciation for the support that the committee has given us in the past. if it turns out that we have additional security needs, we will take the opportunity to let you know. but my understanding is that our security people and the outside experts they have consulted believe that bee have the resources now that we need. >> and if you have a dissenting or concurring opinion -- >> i'll let you know.
12:48 am
>> you'll let us know. >> secondly, regarding the 34 new positions, involving the increase in security funds, are you able to provide us a status update on those 34 new hires? >> i think most of the positions have been filled. am i correct? i'm sorry. eight have been hired as of last year. i stand corrected. >> we've been taking this quite deliberately. the chief justice hired some security consultants, and those consultants have been talking to everybody in the building, with a view on these questions, you know, to the police officers themselves, to the justices, about how exactly it is we should change some of the security practices that we follow, given that we will have greater resources, and so we wanted to let that review
12:49 am
process go forward before hiring everybody. >> how long does it take to onboard one of these new hires, if you know? >> i don't know. >> and this is not a pop quiz. >> many months -- >> shy have introduced some of the members of our staff who came with us here today but this is our marshall, m. tollkien who is in charge of the police force and she tells us it takes many months and this is certainly true. they go through standard federal law enforcement training before they begin. >> well, of course, one of the things driving my questions is this concern about the current political climate where we've seen a rise in public criticism of not only the courts but also specific judges. and it is deeply disturbing to me and i think to all of us.
12:50 am
to see specific judges questioned not on intellectual grounds but on personal grounds. most recently in the news, there was a photo posted online of district judge amy burman jackson with a target placed on her likeness. these are deeply disturbing things to us. and of course, she's not a supreme court justice, but here's the question. do you believe congress ought to consider increasing appropriations for the security needs of district and circuit court judges in the 2020 budget? >> we are not, i think, fully cognizant of the security needs at this time of the lower courts. i believe when you receive testimony regarding the overall federal judiciary budget, that would be an opportunity for someone who is more
12:51 am
knowledgeable to speak to that. but certainly, having been a lower court judge, a court of appeals judge for 15 years, i'm very cognizant of the security needs of judges at those levels and some respects, the security threats to them are more serious than they are to us, because district judges, trial judges at all levels, have much greater contact with members of the public, and are often involved in cases where emotions run very high, and so many of the instances of unfortunate attacks on judges have been on trial level judges. >> i thank you. i yield back. >> thank you. ms. granger? >> thank you. each year, between 6,000 and 8,000 cases are filed with the supreme court. and the court usually hears arguments for, we saw numbers of
12:52 am
70 to 90 cases. so justice alito, i'd ask you, can you tell us how those court, the court decides which cases to hear? >> yes, we have two main criteria, and we select our cases based on the application of those criteria. the first and the most important is, is there a disagreement about significant legal issue among the lower courts. this can be a conflict in the decisions of the federal courts of appeals or conflicts involving state supreme courts. what the constitution means and what statutes enacted by congress mean should be the same everywhere in the country. the law should not mean one thing in one state or one judicial circuit, and something else in another circuit. so that's the main thing that we look for. but we will also take cases that involve what we regard as an
12:53 am
important issue of law that should be decided without any further delay, without waiting to see whether there will be a disagreement among the lower courts, among the lower courts, and the best example of that is a situation in which a statute enacted by congress is held to be unconstitutional. we will almost always review that. even if there is no conflict in the decisions of the lower courts. there are some other cases that are also very important, and we will take without, without a conflict. but those are the two main things that we look for. >> thank you. justice kagan, would you say that there are additional, or cases, that you think should be reviewed? >> i think all or most of us think that we probably could handle a few more cases than we currently do. and in the abstract, i think we would say well, instead of that 70 case, why not handle 90. but then it turns out that even
12:54 am
though we all think that, we don't find 90 cases to take using the criteria that justice alito laid out. using those criteria, that's about what we have been coming up with, year by year. it used to be that it was much more. you know, i clerked on the court about 30 years ago. and at that time, the court was handling 140 cases per year, which was too many. i don't think anybody would want to go back to that. but there's been a lot of ink spilled about why it is that the court's docket has declined. i don't think it's because the court has wanted it to be at 70. i think as i said in the abstract, i think we all would like to have some more. but when we apply those criteria, which are the criteria that i think is a very wide acceptance on the court that
12:55 am
those are the criteria that we should be using, and when we apply those criteria, we've ended up certainly since i've gotten to the court, which is almost ten years ago now, with about that many cases. >> thank you. that's the only question i had. just one statement. going back to the discussion about your security, you're very important to us, to the nation, the supreme court, and so if there is a need for additional security dollars, i'm sure that this subcommittee would be very much in favor of it. thank you both for being here. >> thank you. >> thank you. >> thank you. mr. bishop? >> thank you very much. and let me welcome our distinguished justices. let me ask two questions. i'll ask them both and perhaps i can expedite time. the first has to do with law clerk diversity. a fairly recent national law journal study examining supreme
12:56 am
court clerks from '05 to 2017 found the composition of the supreme court clerks does not even remotely reflect the makeup of our country. 85% of clerks during this period were white, 9% were asian, 4.12% were black, and 1.8% were latino. clerking on the supreme court allows these attorneys to participate in deliberations that directly influence the interpretation of our nation's laws. these decisions impact hundreds of millions of people in the country and sometimes across the world. these clerks are often on a fast track to judgeships, positions in academia, high profile attorney positions in and outside of government. are you concerned about the potential impacts that can result from a court that does not reflect the populous that it serves? and what if anything is the court doing to address that
12:57 am
issue? my second question has to do with attacks on the court. last november, chief justice roberts stated that after a number of attacks on the judiciary by president trump, quote, we do not have obama judges or trump judges, this judges or clinton judge, we have what is an extraordinarily group of dedicated judges doing their level best to give equal right to those opposing before them. that independent judiciary is something we should all be thankful for. do you believe that recent verbal attacks on the judiciary undermine the ability to interpret the constitution and laws of the united states? do you believe that the recent attacks undermine the stature, the reputation and the respect for the court? and the strength and the foundations therefore of our democratic system? >> congressman, i will take your first question. this is an issue that i believe
12:58 am
we take very seriously. each of us hires individually, so there is an extent to which we can't talk for any of our colleagues. but i think that the court as a whole certainly pays attention to this issue, and cares about it. there are many different kinds of diversity. and before i get to the one that i think you're most concerned about, as i am, i will just say that we should keep all of them in mind, not just sort of racial, ethnic and gender diversity, but there is, there are criticisms of the court with respect to its geographic diversity, with respect to its school diversity. when i wander around and go to law schools, i hear more questions about the number of clerks that come from just a few schools than i do almost anything else. all of these are very important.
12:59 am
with respect to race and gender, i think we are doing better. i know this, i referred before to the fact that i was a clerk on the court a few decades ago, and if you want pathetic numbers, those were some pathetic numbers. and the numbers are much higher now. i think for women now, this is our first year where we have a majority of clerks are women. and we are doing better on the front of racial diversity as well. but that's not to say that there isn't a great deal more to do. and as with most of these issues, sort of the higher you go, these are, these are real pipeline issues. and the higher you go, the stronger and firmer and more inclusive the pipeline has to be. and this is something that i know i thought about a lot when i was a law school dean, and in
1:00 am
part, what our, to make the court and its clerks more diverse, you need very diverse law schools, you need judges and law firms, because we take our clerks certainly, they have to come from other appellate judge, sometimes district judges, more and more they come from law firms, so that they're more inclusive and diverse, those institutions, the better that pipeline will serve us. over time, i'm confident that that pipeline will become more inclusive, more diverse, but that means that we all have to be working at it. every single one of us. and the law firms, other judges, and the law schools, and us. and maybe, you know, the most important thing is for us to use whatever bully pulpit we have to make clear that this is an important issue, that diversity
1:01 am
in the legal profession is a matter of real significance, that the legal profession is made stronger by how diverse and inclusive it is. no profession fairs well if you don't take advantage of the talents and the perspectives and the experiences of all kinds of different people. and for us to use this kind of setting, and other sorts of settings to say exactly that, and to say that this is an issue with deep concern. >> mr. chairman, i think my time has expired. unless the chair would give me some additional -- >> probably, you're correct, it probably is -- >> because i filibustered? is that the idea? >> well done. you learned how these cameras work here. [ laughter ] >> mr. justice, if you could answer mr. bishop's question in a succinct manner, i would appreciate that. >> as opposed to to your wordy colleague. >> i apologize.
1:02 am
i don't plene mean it that way. i know everybody wants to get a series in and i should have mentioned that at the beginning. >> certainly. i won't add much to what justice kagan said about law school, law lerk diversity. there is a fundamental issue, all of our law clerks because they serve with us for a year and have to hit the ground running come from a court of appeals clerkship at one point. they need that for the training. on the second issue, it is very important, and i do not want to talk about any particular incident, but in general terms, i will say this. i think it is extremely important for all of the members, of all three branches of our government, to be accurate and respectful when we are talking about members of the other branches. we all have important work to do. we all do our best. we all make mistakes.
1:03 am
there are constitutional procedures for correcting mistakes that are made by lower court judges, but i think we all have to be, have to be careful, consistent with sort of the american way of robust public debate, to be respectful and accurate in what we say. >> thank you very much. >> thank you, mr. bishop. >> mr. graves? >> thank you, mr. chairman. i know you all are keenly aware of all of the things that we're working on every day, i'm sure you watch and monitor and i say that jokingly. but there is one thing today that maybe you could comment on. you know, we've been debating, yesterday and today, on a bill that rewrites the election laws here in our country, and many would suggest it is unconstitutional, and some ways the bill itself admits that in its own criticism of the supreme court decisions in the past, justifying law changes today. not asking to you comment on the bill itself. that's just more editorial. but there is one provision that
1:04 am
has a direct impact on the courts. and i wanted to get your opinion on it. it was sort of added in the last minute in the rules committee without any kind of committee hearing but it requires that the judicial competence code of conduct applies to the supreme court justices, and i'm not sure why that was added, but is there something we should be concerned about in the supreme court? is there a code of conduct issue? that would require this -- >> i will try to be succinct. i think, i know i speak for all of my colleagues in saying that we take our ethical responsibilities very seriously. we are committed to pave behaving in an ethical matter and in a manner that appears to the public that is fully ethical. we follow the code of conduct that applies to the lower courts, but we don't regard ourselves as being legally bound by it, and the reason for that is, can be found in the
1:05 am
structure of article three of the constitution, which says that the judicial power should be vested in one supreme court, and in such interior courts as congress may create. now, i was a judge on one of those inferior supreme courts, using the 18th century terminology for 15 years, they're not inferior in the sense of being less talented or less deserving of respect, but they are subordinate, and we think, i think that it is inconsistent with the constitutional structure for lower court judges to be reviewing the, reviewing things done by supreme court justices for compliance with ethical rules. so that is the concern about being formally bound by those ethics, those ethics rules. and our situation is not exactly the same as that of the lower court judges.
1:06 am
or life is a little different. >> no known misconduct issues? i mean there's only nine of you. and it's explicit. it's not about clerks or staff or anything else, it is only justices. >> well i'll just -- >> i'm just curious why somebody would add this at the last minute. >> something that justice alito said in his first remarks which is we take our ethical obligations extremely seriously, and we do follow the code. the code does not itself answer all questions. where we have questions about the code, and how it applies, typically, we have a very strong legal office that is well equipped to deal with issues like this. we consult with them. maybe we'll consult with our colleagues, or some of them. the chief justice in particular. but all of us take our responsibilities in this area extremely seriously.
1:07 am
and i agree with justice alito, about the sort of constitutional difference between the supreme court and the circuit and district courts. but one thing we are definitely not different, which is we follow those guidelines to the very, very best of our ability. >> thank you. and i never questioned that at all. apparently though, somebody in the majority party does, and i don't know why. but thank you for answering that. >> quick question on cyber security. big, big concern. this committee has addressed a lot, with a lot of the other agencies. clearly, the supreme court has a lot of very important information that it must protect from cyber attacks. is there anything you can speak to on that, just give us a little bit of reassurance for some of your, the plan or proposal that you have in place? >> i am very far from being a cyber expert. maybe my colleague is, she is younger and maybe she's more
1:08 am
knowledgeable than i am. we have a very good i.t. staff. and they assure us that we are well protected. and i trust that that is true. but it is certainly, it is certainly a problem. we don't want individuals to hack into our system. >> most likely have many cyber security experts on staff, i would suppose, right? >> we do have people on staff who work on this, and when they tell us the number of attempts that are made on a regular basis, it's kind of alarming. >> disturbing. >> it is. thank you. thank you mr. chairman. >> thank you. ms. tores. >> thank you very much, mr. chairman, for holding this hearing and thank you so much to our justices for being here. indeed, i agree with my colleagues that today is a special day when two branches of government can come together to talk about the issues that are
1:09 am
pending and important to both of us. we want to mike sure th, make s that you have the resources that you need to carry out your constitutional duties. and apply the law fairly. justice, right? liberty and justice for all. as we discuss salaries and expenses for the supreme court, and we have entered a new era, where women are taking their place in the house of congress, and in the senate, as clerks, and as you yourself have stated, that you have a large number of women now that you have hired on. it is important to me, as a female member of a congress, to be able to answer that question that was asked earlier, how do we know, without an inspector general, how do we know how many cases of misconduct actually
1:10 am
exist? and i'm not probing as to relating to justices, but as a whole, we all have peers, right, how do we know? >> the chief justice and the judicial conference have taken this issue very seriously in the last couple of years, and a working group was formed to examine the practices of the entire federal judiciary, and the working group delivered its report with some very substantive recommendations, and it is my understanding that those are being implemented. i am not aware of particular, of problems on the supreme court itself. but i certainly can assure you that all of the justices are aware of this potential problem, and if it were to come to our attention that there were any
1:11 am
problems along these lines, regarding, involving anybody who works across, in the supreme court building, we would not sit back, we would take action that's appropriate. >> congress has taken this issue very serious. as of lately. because we have had some issues, and congress has an ethics committee that is made up of members of congress, so while i understand that chief justice roberts and justice briar have argued in the past two reasons why there is no process, public process that exists, they argue that essentially a code of conduct is impossible to enforce on justices, as there aren't judges that we could bring to the supreme court to replace
1:12 am
justices. that's what i, i'm bringing up the issue of, as with congress, where we have our own ethics group, that puts, that is a check and balance on members. secondly, it was argued that the code of conduct created by the judicial conference with chief justice roberts presides over, is only an instrument of the lower courts, and i find these arguments unconvincing. i think there are messages that we send to our employees. when we don't put forward transparent policies on how we are going to protect victims and how we are going to deal with whistle blower, and protect whistle blowers. i hope that at some point,
1:13 am
without disclosing specific information, that we could have a conversation around this issue, because it is an important issue. not only to our nation, but to the world. women all over the world are finding their voice, and it cannot stop at the supreme court. >> i do believe that with respect to a code of judicial conduct, justice alito has suggested some of the reasons why we have reservations about following the same code that applies to lower court judges. but for that reason, the chief justice is studying the question of whether to have a code of judicial conduct that's applicable only to the united states supreme court. so that's something that we have not discussed as a conference yet. and that has pros and con, i'm sure. but it's something that is being thought very seriously about. and then with respect to the sexual assault issue in
1:14 am
particular, as it relates to the entire judicial branch, this is something which i think that the chief justice has been really pro active in getting a wonderful committee together of judges and circuit executives, court executives, and the final recommendations i believe are going to be voted on this spring, that the conversationfe going to vote on a group of recommendations that do many things, not just make clear what conduct is forbidden but also protect against retaliation, and make the processes for reporting very streamlined, or much more streamlined than they've been, and of particular concern in the judicial branch, i think that there's been some reservations about you take, people take seriously that they, the sort of confidentiality of a chambers,
1:15 am
but making it quite clear that that confidentiality gives way, when people are reporting sexual misconduct. and so taking that off the table with respect to these kinds of allegations. >> thank you very much. i'm very interested in the subject, so if there is anything that i can do to help move forward, please let our office know and i yield back. >> thank you. ms. stewart? >> thank you, chairman. justice, what an hon ter is to have you here. i think it has been a helpful conversation. it is far less contentious than many of them. and we're grateful for the calm demeanor you bring to us. >> we can start fighting if you want. >> it ale come. if you will allow me two quick personal objections. i'm not an attorney. and i was going to go in law school and very late decided to go into the military but i come from a family of attorneys one of my brothers is a district court judge and three of my sons are harvargoing to harvard, one
1:16 am
harvard, and i wonder why they chose that career path but i'm obviously proud of where they are. and second ling i want to go back to our conversation regarding televised remarks and i want you to know that i agree with your reservations about that and i'm someone who understands the cameras and the openness is a very important part of congress, it's the work that we do, and mr. quigly and i both sid on the house intelligence committee, most of our work is done in a basement without cameras, and without people there, that are observing, and i think we will both tell you that you do have a different experience when cameras are there, and especially if it is an emotional topic, which by the way you all deal with all the time. some of them are a little less so, but many of them are the most contentious issues facing our society right now and i can imagine that that would maybe change your process. now if you could, i'm going to ask a question and i don't know if you're going to bear with me and feel comfortable asking, or
1:17 am
answering it, but i'm going to try. and it kind of builds on what chair woman granger said, when she was indicating, you know, 6 to 8,000 cases before you, of which you select a very small number. 70 or 80 or 90. and it seems like my concern would compel that to change, and maybe force you to do more. but my concern is far broader than that, and it is this theme that we've seen in recent past, the last half a generation maybe, of nationwide injunctions that are imposed by a single district court judge. various locations around our nation. they bar the federal government from enforcing law or policy far more reaching than their own district. and as i said, and by division, it extends to everywhere in the united states. and as i was thinking about this, and doing a little reading on it, i mean you all know this, i didn't, but the first time it happened was in 1963, 200 years, to get to where we had this kind of precedent, but in the last
1:18 am
year alone, we've had 22 of these, and it seems to be an explosive trajectory for our federal courts to impose these nationwide injunctions. and i suppose that compels to you look at many more cases, because those have to be examined. could you share your thoughts on that? it concerns me. does it concern you? does it concern the court? is this a good thing for our country? and is there a way to correct it? >> i appreciate your remarks, and this is an important issue. some of my colleagues, i believe, have written on it a little bit, in recent years. it's an issue that is being discussed increasingly in scholarship, and it is an issue that may come before the court in the near future. so i don't think i can say more
1:19 am
about that. and certainly can't suggest how i think we should decide the issue. and wouldn't be in a position to be able to say that until the issue came before us, and the issue was briefed. we have had an increase, during the last year or so, in cases in which we have been asked to stay injunctions that have been issued by the district courts, and we have received applications from the solicitor general in a number of cases to grant certiorari before judgment, which would allow us to take a case directly from a district court, bypassing the court of appeals. that's a procedure thats a always been available but it is always one to be recognized to be used quite, to be used quite sparingly. i think, i don't think i can go further on that issue. >> justice kagan, do you want to
1:20 am
share any thoughts? >> not really. >> i understand. and i, of course, not being completely oblivious, i anticipated that, you know, you would be very cautious in how you responded. can i ask for one clarification and just for my own knowledge, when we do have these nationwide injunctions, does that compel you to examine all of those cases, or not in every case? >> they are typically made in connection with a petition for a writ of certiorari, which is a matter of court discretion, so we don't have to grant certiorari in any case, and therefore, the application is also discretionary. >> okay. thank you both. >> thank you. ms. kirkpatrick. >> thank you so much for being here. both my husband and i are
1:21 am
attorneys, and so is my oldest son, and we not only read your opinions, we debate them at the dinner table and we appreciate you taking the hardest cases and your excellence in real writing we as a family very much appreciate that and being from arizona, we're very fond of former supreme court justice sandra day o'connor, and justice alito, it's a pleasure to hear from you today, as her successor, not replacement, you can't replace sandra day o'connor, but thank you again, both, for being here. my question involves financial disclosure. supreme court justices like all federal judges file an annual financial disclosure report each may. but unlike members of congress, these reports are not posted online. would you support a change in policy to online disclosures?
1:22 am
>> as a practical matter, they are available online. almost as soon as they are released to the public. there are private groups that request all of the financial disclosure forms of the justices, as soon as that is possible, and as soon as they obtain them, they put them online, so as a practical matter, they are already available online, and anybody can see any of our financial disclosure forms. we follow the procedure that's set out in the ethics and government act, and in the implementing regulations of the judicial conference on this matter, and we have not gone further. but that is certainly something that we could consider, if there is a real issue, because they are documents that are available to the, supposed to be available to the public. >> and you were talking about the transparency of your web site, and the things that you
1:23 am
post there, and that was what sort of prompted my question. >> justice kagan, anything different? >> no, i think that is my view, too. >> okay. again, along the lines of financial disclosure currently, the supreme court justices are not bound by the stock act, which requires members of congress to post securities transactions within 45 days. do you see any reason that federal judges, including the justices, should not be included in such a measure? >> i've not looked into that piece of legislation, so i don't know what's in it. but it would certainly be something that maybe we would take a look at it, as to whether there were some kinds of transactions that some of us might be participating in, that
1:24 am
in other branches of government are being reported, and in ours not. i just don't know that to be the case. but certainly, we'll take it back with us. >> thank you. thank you. all in the interest of more transparency. >> and we are prohibited by statute from participating in any case in which we have a financial interest. so if we own stock in a company that is a party or related to a party, subsidiary, or a parent, and we are prohibited from participating in that case. and all of that is disclosed in our financial disclosure form. >> thank you again. i yield back. >> thank you. mr. chris? >> thank you, mr. chairman. and it's wondful to have both of you here today. thank you for your presence. i was curious, there's been four years, i believe, since justice of the supreme court has been before this committee do you think it would be advantageous
1:25 am
to have this opportunity on a more regular basis, or do you think this is sufficient? >> we were talking before the hearing began with the chairman, and he was suggesting that he would not think that this is an every year kind of thing, but in every few year kind of thing, i hope i'm not misrepresenting you, mr. chairman, and you know, we are at your disposal, so i think it is a kind of, i agree with the chairman, you might not get, it might not be different enough year by year by year, it might be sort of repetitive, but if you want us, if you want us to come back in a few years time, we would be glad to do so. >> thank you. >> and then my only other question, i was just kind of curious, i noticed that there's discussion of the 2020 supreme court salaries and expenses budget totals, $90.4 million. and that 87.7 is for
1:26 am
discretionary expenses. can you elaborate on what those might be? i'm just not aware, that's all. >> those are, the mandatory expenses are the salaries of the justices that cannot be decreased pursuant to the constitution. that's why they're called mandatory. it is somewhat misleading terminology. but discretionary expenditures are everything else, and the vast bulk of that con civil rights of the salaries and benefits -- consists of the salaries and benefits of our staff, so the amounts that they are entitled to in accordance with their pay grade. >> is there any per deem or travel expense allocation? >> there is. not for us. they are for most of our members of our staff do don't a lot of traveling. our police officers do. and i assume that there is a per diem for them. >> probably when you would travel, they would need to be
1:27 am
with you, i assume. >> thank you very much. thank you thank you, mr. chairman. >> thank you. i would just ask the ranking member if there is any member on his side who has a second round of questions. and i would ask my members as well. if someone has a second round. all right. >> there is one thought, there was some curiosity on how the shutdown impacted the court. you seem to be up and running. some ability to move forward, did that impact you in any way? >> fortunately, it did not. we operate, my understanding is that we operated during the shutdown using the same pool of funds as the rest of the judiciary, and those are funds that are derived from the filing fees that parties are required to pay in civil cases. so we are permitted to use those for operating expenses in an emergency such as. that and fortunately, there was
1:28 am
enough money for us to keep operating during the shutdown. >> justices, do either of you have anything else you would like to add? >> thank you very much for having us. >> we thank you so much. the ranking member, and myself, and all members here, thank you very much for your service. and your time today. thank you so much. >> thank you. >> thank you.
1:29 am
1:30 am


info Stream Only

Uploaded by TV Archive on