SPEAKERS CONTENTS INSERTS Tables
Page 1 TOP OF DOC
DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED AGENCIES APPROPRIATIONS FOR 1999
Wednesday, March 11, 1998.
SUPREME COURT
WITNESSES
HON. ANTHONY M. KENNEDY, ASSOCIATE JUSTICE
HON. DAVID H. SOUTER, ASSOCIATE JUSTICE
JAMES C. DUFF, ADMINISTRATIVE ASSISTANT TO THE CHIEF JUSTICE
DALE B. BOSLEY, MARSHAL
BILL SUTER, CLERK
FRANK WAGNER, REPORTER OF DECISIONS
TONY DONNELLY, DIRECTOR OF BUDGET AND PERSONNEL
Opening Remarks
Page 2 PREV PAGE TOP OF DOC
Mr. ROGERS. This morning we will hear the testimony regarding the fiscal year 1999 budget request of the Supreme Court. We welcome before the subcommittee Justices Anthony Kennedy and David Souter. This is their fifth appearance together before us, and they have become quite a team—including a softshoe dance from time to time.
This is a unique opportunity for the Congress to interact with the Supreme Court, the highest court of a separate and independent branch of our government, working within the system of checks and balances envisioned by our founding fathers.
One of the constitutional bases of our government is that no money can be spent from the Treasury except as a result of an appropriation enacted into law, as set forth in Article 1, Section 9. That requirement is what leads to your appearance here, and we are, of course, pleased to welcome you here. Our hearts are open to you, if not our wallets.
We know that this hearing always sparks some media interest, and we suspect that it has more to do with your being here than our being here, so welcome.
After hearing from the Justices, we will hear from the Architect of the Capitol, who has responsibility for the care of the Supreme Court Building and grounds.
Justice Kennedy, we will make your prepared testimony a part of the record. We would be pleased to hear any summary that you would care to make, and then we would be pleased to hear from Justice Souter.
Statement of Justice Kennedy
Page 3 PREV PAGE TOP OF DOC
Justice KENNEDY. Thank you, Mr. Chairman. Justice Souter and I are pleased to be with you, once again.
I know that the budget of the Supreme Court is small by comparison even with that of the whole third branch. The budget for the courts as a whole this year I think is something over $4 billion, and we are less than one percent of that.
I was thinking last night, though, Mr. Chairman, that this is a valuable exercise for us. It gives us a good chance to examine our own court operation, small as it is. It has been many years since I have had to meet a payroll or a monthly overhead commitment, and it is important for us to see what governmental agencies and what private law firms have to do in order to have a modern and efficient operation.
We are assisted in the preparation of our budget, of course, by our staff. Most of the principal officers of the court are here with us today—Bill Suter, the Clerk of the Court; Dale Bosley, the Marshal; our Reporter of Decisions, Frank Wagner; our Budget and Personnel Officer, Tony Donnelly; and our Public Information Officer, Toni House; and Jim Duff, your fellow Kentuckian the Administrative Officer/Administrative Assistant to the Chief Justice.
Our budget request is for just under $37 million, which is a 13 percent increase, and most of that increase is due to the buildings and grounds portion, which the Architect will present. He, and not we, are the experts on the raw data that make up that request.
As we have advised you, and as you well know, Mr. Chairman and members of the committee, the court facility is going to need some major renovations in the next few years. The Justices think the building is just fine the way it is. We like it. And as you know, we have spent a considerable amount to clean the exterior over the last few years. We think the building represents stability and fidelity and inspiration to the public, and we think it is very important to stay in that building.
Page 4 PREV PAGE TOP OF DOC
Now, the things we do not see are wires and the plumbing systems and electric systems and foundations. The Architect felt that we need to refurbish those systems, and so that is what that increase is going to be and he will tell you about it.
Our budget request of just over $31 million for Salaries and Expenses is a six percent increase. At page 1.3, we detail the adjustments to base. Those are the things that you are very familiar with. Much of the increase is for pay and benefits. My understanding is that this is—part of this will always be constant if there are COLAs.
On the other hand, the federal employees retirement system and the conversion to that is an increase that may not occur, to this extent in any event, in later years. Law books increase in cost at more than the rate of inflation. They are up again this year by 10 percent.
On page 1.4, we detail the request, or list the request, for four additional positions. We actually identified a potential need for up to six, but we think we can defer two certainly for a year. The first three are all technically related. They all have to do with the computer and technical systems.
Our people tell us that they replace the hardware once every three years. One-third of the hardware is replaced every year, and I could not understand that until I started talking to people who say that they send their son or their daughter to college with a computer as a freshman and it is outmoded by the time they are a junior. So that is happening to us, and we need these people to keep us up to date on these systems.
Page 5 PREV PAGE TOP OF DOC
We actually, over the years, have converted many of our positions in the Clerk's office and in other offices of the court to this computerized Clerk's function. So the staff has been strong and innovative in upgrading the talents and the skills of our own people.
The fourth request is somewhat technology related as well. It is for an additional person in our Reporter of Decisions Office. He or she will be the Assistant Reporter of Decisions. I brought my prop here, the United States Reports. These are the lineal successor, of course, of Dallas and Cranch and Wheaton. The U.S. Reports set a very high standard in the world of the law for their excellence and their accuracy. It is the way we keep in touch with our own past.
The time lag between the preparation of this bound volume, or I should say between the issuance of our decision and the preparation of the bound volume, was just a few years ago, over four years. This was simply unacceptable. Our reporter, Frank Wagner, has cut that gap in half. He tells us that by the end of the '98 term it will be less than 12 months, which is certainly commercially acceptable.
The problem now, though, Mr. Chairman, is that as soon as we release our opinion, it really should be in fully edited form. In past decades, the reporter has been able to wait for counsel or attorneys or law professors to write, suggesting certain small changes, and also to take his own time to ensure that the statutory references and citations are precisely correct, that being one of the most difficult parts of his work.
But now, since it is released immediately and becomes really part of the public domain worldwide, the post-edit function becomes largely irrelevant and, in some cases, rather mischievous. So this additional position is to enable him to complete almost all of the editing before the opinion is written.
Page 6 PREV PAGE TOP OF DOC
The other increases are for telecommunications improvements and removal of some wiring systems. The Architect of the Capitol is in charge of placing the conduit for the wire, but we are in charge of putting the wire in and out.
Mr. Chairman, over the years, the Congress of the United States has been generous in providing facilities and resources and support for the Judiciary. As you well know, when people from foreign countries, or even from other states, come to Washington, they visit the Administrative Office of Courts and our Court, and the Federal Judicial Center. What they see is one of the most impressive judicial systems in the world.
We had lunch, the nine of us, last week with the Chief Justice of Norway. He had come here specifically to discuss court structure and court management with the Administrative Office of the Courts, and he told us how valuable that was and how enviable the system is that we have. And that is because the Congress, Mr. Chairman, and the Executive have recognized their constitutional responsibility to maintain the courts, and for that we thank you.
[The information follows:]
"The Official Committee record contains additional material here."
Mr. ROGERS. Thank you very much. Justice Souter.
Justice SOUTER. Mr. Chairman, thank you, but I will be even more brief than Justice Kennedy.
Page 7 PREV PAGE TOP OF DOC
UTILITY SYSTEMS UPGRADE
Mr. ROGERS. Well, you managed that.
Well, thank you very much for your statements.
Last year, we talked about plans for replacing the utility systems in the building, a project that last year was estimated to cost $22 million, compared with estimates a year earlier of $7 million.
Justice Kennedy, last year you indicated that you thought it would be worthwhile to do the schematic study that we did in fact fund in fiscal year 1998, and then decide whether it made sense to proceed forward with the entire plan. This year's Architect's budget includes $2 million to proceed with the design of the project, even though the schematic study has not been completed.
Do you think that we should proceed to design the replacement of the court's utility infrastructure, before the schematic study is done and decisions are made about whether and how to go forward with the project?
Justice KENNEDY. That is a technical question that I will leave to the Architect. As I indicated at the outset, we think that—I know that we, and I am sure that the public, and I think that the Congress has committed to keeping us in that building. When you tell me—when the Architect tells me, rather, that it is going to take $2 million to study improvements of a building that cost $9 million to build, it is a little difficult to fathom.
Page 8 PREV PAGE TOP OF DOC
But so much of this has to do with wiring and telephone communications, plus basic plumbing and electrical systems, plus security, that I hope that you will give the Architect the funding that he needs. We deferred it last year, and I think we had better proceed with the study as he proposes it.
Mr. ROGERS. Are you fully prepared for the dislocation and the disruption of a four-year remodeling? I hope so. It is going to be a mess.
Justice KENNEDY. We are thinking about that. We——
Justice SOUTER. The answer is no.
Justice KENNEDY. I may work at home more days of the week than I do.
RESOURCE NEEDS
Mr. ROGERS. Of course, the primary purpose of your being here today at this hearing is to consider your budget for fiscal '99, and to be sure that you have sufficient resources to carry out the weighty responsibilities that you carry. You currently have an operation that includes 331 employees.
What is your overall assessment of the resources that are available to you? Are we adequately taking care of your needs?
Page 9 PREV PAGE TOP OF DOC
Justice KENNEDY. Our needs are adequately taken care of. As I indicated, we identified two positions that we might have added in the library and in the printing staff, but we think we can wait at least a year for those. Our people have been good about reassigning functions and redesigning the functions of the court. We are adequately staffed.
Of course, we are a much simpler operation than even a court of appeals. All nine of us sit on every case. We have no vacancies. The courts of appeal sit in panels, they sit in different cities, they have mandatory jurisdiction, and a trial court is far more complex even than that. So we are a fairly simple operation, which is why I think it is valuable for us to focus on it as a discrete budget matter.
Mr. Chairman, we are current in our work. We have the staff and the facilities that we think that we need to perform that work.
Mr. ROGERS. You are requesting an increase of $200,000 for the removal of old voice and data wire. Why would not that be a part of the major system's refurbishment that will be starting in fiscal 2001 that is the $22 million renovation?
Justice KENNEDY. I have got two answers to that. One is it has to be done anyway, and the other is that it has to be done immediately, because we cannot put new wires in. The conduits are only so big, and apparently they kept just adding new wires without pulling the old ones out. And if you go in and just pull them all out, then you stop the system. So the Architect has told us that this is not redundant and that it is necessary now.
Page 10 PREV PAGE TOP OF DOC
Mr. ROGERS. Now, here is truly something that Chief Justice John Marshall would have had no way of anticipating. It is called a year 2000 computer problem. Yours is one of the few budgets that we have seen that does not include a budget request to anticipate the year 2000 computer glitch. How will the problem affect the Supreme Court, and are you anticipating any needs in that area?
Justice KENNEDY. Number one, it does affect us, because we have dates and docketing, as well as payroll, just as any other agency does. Number two, apparently, it is a problem with our computers. And, number three, within the existing budgets, including the senior program analyst that we have requested as a workload increase, the staff says that they have this problem contemplated within the existing budget and within the personnel increase. They are looking at it.
I have not met anybody yet who tells me that it is not going to be a problem. They say that within existing budget we can identify the problem and solve it.
Mr. ROGERS. Mr. Dixon.
JURY SELECTION
Mr. DIXON. Thank you very much, Mr. Chairman, and I, too, would like to welcome you gentlemen here. And I have really no questions as it relates to the budget.
But, Justice Kennedy, you talked about electronic distribution. Are you currently using some form of electronic distribution?
Page 11 PREV PAGE TOP OF DOC
Justice KENNEDY. Yes. We, number one, have access to our docket, to our order list, to our attorneys admissions lists, and immediately when the opinion is out, it is on an electronic system so that it can be picked up that way.
Mr. DIXON. And the additional person would be to make sure that the opinions are in the proper form before they are released?
Justice KENNEDY. That is the Assistant Reporter of Decisions, yes. The opinion goes out over the wires to I suppose tens of thousands of lawyers hours after it is issued, and that is why the instant release has become so much more important. It has taken on such a greater significance these days. And we want to be able to complete the editing function before it goes out.
Mr. DIXON. I have not attended the last two hearings of the Supreme Court, but I have read with interest the dialogue that has gone on between the Chairman and members about the trial courts. And I note that recently a commission here in Washington, D.C. has made some recommendations about restructuring of the jury selection process.
In fact, there is an editorial in today's Washington Post about restructuring of jury selection. I do not know if either one of you gentlemen have an opinion or think that we need to study the jury selection processes. Do you have an opinion? And, if so, would you state it?
Justice KENNEDY. I do not have a well thought out specific plan. I do know that it is an area that deserves attention from the courts and from the Congress. I think the public sometimes thinks that the jury system is being manipulated when we have jury consultants, so that the person sitting next to the counsel table says what kind of a juror to find.
Page 12 PREV PAGE TOP OF DOC
In England, as you know, it is basically the first 12 people in the box are selected, unless there is a clear conflict such as a financial interest or a relationship between a juror and one of the parties or the counsel, and I think this works very well. I think preemptory challenges are very costly, not only from the standpoint of delay in getting the jury selection, but from the standpoint of the perception of fairness of the community.
Justice Souter I know agrees with me, and I think every member of our court agrees, that the jury system is of immense importance in this country.
Congressman, we would not have a system in which courts and judges have the authority and the influence and the significance that they do were it not for the leveling and the democratizing influence of the jury. And we are absolutely committed to the jury system in this country. It is the opportunity for the citizen to participate in government in a very direct way. Other than voting, this is the most direct participatory role a juror can have, and it is of immense importance.
I think we ought to give more attention to how we select the jurors. I think preemptory challenges are somewhat——
Mr. DIXON. You are not suggesting that we do away with preemptory challenges?
Justice KENNEDY. I think they can be severely limited.
Page 13 PREV PAGE TOP OF DOC
Mr. DIXON. In general, I would agree with your statement. But just from my general observation, it seems that a lot of people escape jury duty. And, therefore, you do not have a good class to draw from. Many professional people escape jury duty because for one reason or another they cannot afford it or they are providing a service.
When you look at jury pools, you find that in some areas or communities the same people are being called all the time. They are usually Federal Government employees, because the Federal Government understands the importance of jury service and pays the people.
If you are in the private sector working for the tire company, perhaps your employer will not pay you for your jury service. So, in theory, this jury system seems to be working very well or has in the past, but it seems to me that there is a disproportionate burden falling on some people in our society to serve on juries versus others who very easily escape.
I am not criticizing them for that. I am just saying that when we talk about the jury system, it sounds like democracy at work, but we find more and more that there is a limited class of people that are participating in the jury system.
Justice KENNEDY. You may remember, you were in the legislature in California, I think in the early '70s it was, when California abolished all exemptions.
Mr. DIXON. Yes.
Justice KENNEDY. And the Code was just rife with exemptions. And the result was I was a United States Circuit Judge, I sat on a jury. To my supreme disappointment, the case was dismissed before it ever went to the jury. [Laughter.]
Page 14 PREV PAGE TOP OF DOC
The governor, Governor Brown, sat on the jury, and I thought this was salutary. But this is largely a function of state court judgments, but I agree with you that it is very difficult to have a fair jury if the jury pool itself is not representative of the community.
TELEVISING COURT PROCEEDINGS
Mr. DIXON. Justice Souter, I certainly want to give you an opportunity to restate your position about a bill that is currently before our Judiciary Committee that would give discretion to judges in the federal system to allow cameras in the courtroom. I understand you are opposed to that.
The Chairman has tried to make a comparison between the House of Representatives or Congress and the Judiciary, and some might say it seems kind of stuffy that the court system feels that they should not be open to the camera, and you also make some very valid points.
I think one is the context in which statements are being made and that justice may be taken out of context. You think, as I recall your testimony, that it is an inhibiting factor in dialogue between the attorneys appearing before you and the justices.
But on one hand you want to use electronic distribution, modern technology, and, of course, having cameras in legislative bodies and in some courts is now the accepted practice. I guess my question to you, would you still be opposed to giving the discretion to judges if the Supreme Court were exempted from that particular——
Page 15 PREV PAGE TOP OF DOC
Justice SOUTER. I still would be. The different courts have different reasons, I think, for fearing the effect of live cameras, or still cameras for that matter, in the courtroom. But they all have an interest, and I saw the interest back in New Hampshire as an appellate judge in New Hampshire, and I do not think we need any extended argument today to point out the effect that these cameras can have on a live trial.
And so, yes, I am very protective about the process of the Supreme Court, and I do not want that compromised. But I am equally protective about the processes of the other appellate courts in this country and the trial courts, and I do not want them compromised either.
Mr. DIXON. Thank you, Mr. Chairman.
Mr. ROGERS. Let me stay on that subject a bit further here. Let me ask you this, Justice Souter. Would you allow making available video recordings of court arguments to proceed, or would that still be within your objection?
Justice SOUTER. I do not see that it would make very much difference whether the broadcast comes literally simultaneously with the argument, or whether it comes three hours later, or for that matter three weeks later. I think the process is going to be compromised, and it is too valuable to spoil it.
Mr. ROGERS. Correct me on this. The audio recordings of oral arguments before the court are released at a later time, are they not?
Page 16 PREV PAGE TOP OF DOC
Justice SOUTER. Yes. They have traditionally been released at the end of the term, and we have talked about even getting them out earlier once the case has been decided. I do not think they are actually being released that early yet, but they are basically available at the end of the term.
Mr. ROGERS. You have no problem with the audio recordings?
Justice SOUTER. No. You know, it is a pragmatic difference. It is not a difference in some kind of theoretical principle. That does not seem to invite the abuse that I think a video recording with relatively early release of the video recording would do.
Mr. ROGERS. Would you have a problem with live radio broadcasts of the oral arguments?
Justice SOUTER. I think I would, simply for this reason. That, oddly enough, has never been one of the proposals, but I think my concern with that would be that the immediate release of a radio recording would lend itself simply to the kind of editing down to the sound bite, to the two-second clip, that the audio recording does. And I think it would have the same kind of inhibiting effect that immediate video release would have.
Mr. ROGERS. So you do not think that in releasing the audio recordings of the oral arguments at the end of the term would cause a lawyer to add any rhetorical flourishes that he would not otherwise make in order to gain some notoriety?
Justice SOUTER. I really do not. Actually, it is not so much adding the rhetorical flourishes that concerns me, although that is in my mind, as the reticence sometimes on the part of the court in place of being very candid in its questioning, and that would be true in any event.
Page 17 PREV PAGE TOP OF DOC
But a release months later of simply an audio recording just does not present the opportunity for the kind of grandstanding, which goes with the performance itself. It is six months old news then. Not many people are going to play it, and I think for that reason not many people are going to be tempted to abuse the process so that it can be played.
Mr. ROGERS. Mr. Dixon referred to the fact that the U.S. House, and now the Senate, have added live television coverage of our proceedings. And I do not think anyone would say that there is any grandstanding that goes on in the Congress.
Justice SOUTER. I would certainly hope not. I would be shocked if there were.
Mr. DIXON. If the Chairman would yield, it would seem to me, Justice—and maybe you can respond to this—that my personal view of C-SPAN activities of the House is that members of Congress, because they are elected, are talking to a particular audience and not to the other member, that they are using this as a forum to communicate to other people unrelated to the House.
But in the case of the court, the attorneys are addressing, particularly at the Supreme Court I would think, the Justices, and do not have the need as much to try to shape public opinion on the issue.
It seems to me that you could make an argument that, in fact, it would work better in the court than it does in Congress, in that people would get a real feel for what is going on versus here in the House where I do not think people are getting a real feel at all for what is going on. They are getting a performance every day by many members of the House, not all, but by many members of the House.
Page 18 PREV PAGE TOP OF DOC
Mr. ROGERS. What? [Laughter.]
Mr. DIXON. I know that you are surprised to hear that, Mr. Chairman.
Justice KENNEDY. Well, if I could just jump in at some point. What many people when they visit our court see, when they observe an oral argument, appears to be a dialogue between two people—the counsel who is responding to a question and the Justice who is asking it. But as you indicate, the dynamic is much more rich, and it has a much deeper dimension than that.
Basically, a skilled attorney enters into a conversation among the Justices. I ask a question because I want Justice Souter to know that I am concerned about the following thing, and so I am basically talking to Justice Souter through the medium of the counsel. And a very skilled counsel understands this dynamic and the argument can be quite a wonderful thing.
This is why it is a quiet, deliberative, cautious process that is based on a logic and a tradition of its own that is different—not better, not worse, but different—than the political branch's. And, of course, there is educational value in that.
The question is whether the television is really needed in order to enhance that process or in order to make it better understood. Ultimately, Justice Souter's position in the law, in history, and my position, will be assessed by what is written in this volume. (Witness points to Volume of U.S. Reports)
Page 19 PREV PAGE TOP OF DOC
VIDEOTAPE OF ORAL ARGUMENTS
Mr. ROGERS. Well, Justice Souter, you have no problem, as you have said, with audio recordings of the proceedings for release as a historical record, at the end of that term. Would you have a problem if, similarly, a videotape of the proceedings were made verbatim, in a generic sense, to be released only at the end of the term, similar to the audio recordings, just for historical records purposes?
Justice SOUTER. Well, I would, because in the real world, those would not be the terms on which the video was being made. The first video might be made, if that was the way to get the camel's nose under the tent, on exactly those terms.
The next year what we would hear is, ''The camera is already in there. It is not distorting the process. It is not going to distort the process any more, depending on when you release the tape.'' And within a year or two, the tape would be out of the courtroom in time for the 6:00 news. So I would not run that risk.
I would like, if I may, just to go back to a word on Representative Dixon's question. I agree with what Justice Kennedy said, by the way. Let me just take your question on your terms, bearing in mind the difference in the relationship between counsel and us, and a member of Congress and his constituents.
There are days, even under the present system, when I have to admit that the ideal kind of argumentative relationship that Justice Kennedy speaks about does not always occur. I have been here, well, eight years now, going on eight years, and I have derived one tentative general rule, and that is that great cases at least raise a very high risk of lousy arguments.
Page 20 PREV PAGE TOP OF DOC
The best arguments that we have, the most helpful arguments that we have over there, tend not to be in the most spectacular cases. And the reason that sometimes things do not work in the spectacular cases is—and it is very apparent the minute the argument starts—that the argument is not being made to us.
The argument basically is a statement, a dress rehearsal almost, of what is going to be said out on the terrace in front of the building when the argument is over. And when we start off on those terms, it is difficult for us to accomplish what we want to accomplish in an argument.
If we have got cameras with instant release, we are going to be inviting that kind of breakdown in a much higher percentage of cases.
Justice KENNEDY. My experience is the same as Justice Souter's. The merit of an oral argument is inversely proportional to the public importance of the case. And you know from your own experience, Congressman, that if the attorney's clients are in the courtroom, he cannot resist talking to his clients and not to the court.
QUALITY OF ORAL ARGUMENTS
Mr. ROGERS. We hear anecdotal stories that the Justices do not always think the quality of oral arguments are the highest quality. As the forum that hears the most exalted cases of law—and you debate some of the most pressing issues that our society faces—the Supreme Court is a place where probably most people believe that the most profound arguments take place. And we all believe that.
Page 21 PREV PAGE TOP OF DOC
What is your experience on the quality of arguments that takes place in the court?
Justice KENNEDY. Well, it is mixed. I think we do a disservice to the bar in stressing our disappointment at some of these arguments. I think overall they are very good. The object of an oral argument is to address the difficult issue in the case, not the easy issue in the case.
And it is sometimes frustrating to us when we will take a case that is representative of many cases. There is only one counsel arguing, say, for a state, but many states are interested in the issues. And if the oral argument is not helpful to us, we then become somewhat frustrated.
But I would not let that occasional frustration obscure the fact that the oral argument dynamic is generally excellent. Sometimes we do not behave very well. We interrupt each other, and we end up—we are very conscious that the clock is ticking. We have only a half an hour per argument, per side. And we are sometimes anxious to make our own points.
I think we sometimes should and do reflect on the fact that civility begins at home, and we must be more conscious of allowing the counsel to get his or her point out. But we become so interested in the argument that we sometimes forget. It is a great dynamic, and I cannot make any generalization about the percent of good ones and the percentage of bad ones.
But the ones that are not good are ones where we are disappointed. We came out there looking for help, and we often ask questions of the counsel who we think is going to prevail, just to test our position. I have to sit there, or Justice Souter must, and think, well, you know, the Chief might assign us this opinion. What am I going to say about this? And we need the help from the counsel.
Page 22 PREV PAGE TOP OF DOC
Maybe Justice Souter would disagree with that assessment.
Justice SOUTER. Well, no, just more of the same. I mean, there is not any question that there is an enormous range of quality in Supreme Court arguments. Some of them are not very good, and some of them are simply magnificent. And at least based on a comparison, in my own experience, between the State Supreme Court and this Supreme Court, I know that we are lucky here. The mixture is just richer. We get a higher percentage of the really magnificent.
I never heard Rex Lee argue in the Supreme Court of New Hampshire, and I heard him argue down here. And you do not forget those days, and you are not unappreciative of the fact that on the whole the mixture is rich.
Mr. ROGERS. Are there ways available for lawyers to be better trained and educated about a presentation before the court?
Justice SOUTER. Well, there are. I am not sure in all cases they are very practical. But I know that a lot of state's counsel from the State Attorneys Generals' offices will avail themselves of the chance to basically have a kind of dress rehearsal argument thanks to the volunteer services of some Washington lawyers who will try to prep them for what they can expect. And I know that other counsel go through that, too. But, you know, the best guarantee of a good argument is a good lawyer.
Justice KENNEDY. Routinely, the Solicitor General of the United States and his deputies present superb arguments. They will never go before us without having had at least one full dress rehearsal where there is someone playing each of the Justices. And new counsel, private counsel, sometimes forget to do that.
Page 23 PREV PAGE TOP OF DOC
Mr. ROGERS. Would it help if an inexperienced lawyer, although a good one, was preparing himself or herself to argue before the court—would it help if they were able to look at a videotape of a Rex Lee performance before the court, for example?
Justice SOUTER. Not if they are not Rex Lee. [Laughter.]
Mr. ROGERS. Or any of the other good ones?
Justice SOUTER. Well, actually, what they do—and I think this does help them—we frequently find, just because we notice faces in the bar section of the court, that a lawyer with an argument will either come for a couple of days of argument in the session preceding the one when he is going to argue, or will come a few days early on the week that his argument is planned, and will just begin to get a feel of the court and a sense of what to expect. I think, you know, they can do that also by getting the transcripts of the arguments, if they want to.
Mr. ROGERS. You do not think that the non-verbal language that we all communicate with, body language, facial expressions, inflections in voices, inflections in faces, have any part of the communication before the court?
Justice SOUTER. Oh, I think they have a great deal of it. But the cost of providing that by video coverage of the court would be too high for the system to bear.
Page 24 PREV PAGE TOP OF DOC
Mr. ROGERS. I just cannot get around the objection here.
Justice KENNEDY. You can see what it is like arguing with Justice Souter. [Laughter.]
Mr. DIXON. I think the answer, Justice Souter, is yes, it would be of value to the lawyers, but on balance, as you said, you would resist it because of the cost. I have mixed emotions about it, and I think they make very good points.
JUDICIAL VACANCIES
Mr. ROGERS. Let me switch gears quickly. Much has been made, even by the Chief Justice, of the number of judicial vacancies in the Federal system. In fact, there are currently 85 judicial vacancies, by no means a historical high. Thirty-four of the vacancies are nominees who were pending last year and have carried over to this session, well below the average number of vacancies.
Thirteen have been nominated this year, so action on those nominees could not be considered overdue. Thirty-eight vacancies are for judgeships for which the Administration has failed to send up a nominee to the Senate. So does not that show that the current level of vacancies is not, number one, even average, above average? And, number two, does not it show that it is primarily due to the failure to submit nominations in a timely manner?
Justice KENNEDY. The Chief Justice in his year-end report made the point or addressed the problem that you are referring to. The Chief Justice is very prompt, and he issues the year-end report at the end of the year. And I think the press reporting of the Chief Justice's statement missed his major point.
Page 25 PREV PAGE TOP OF DOC
He was, I think, careful to say that the responsibility for the current vacancy factor rests both with the Executive and with the Congress, and that they must together find a way to cure it.
I have looked at the figures, Congressman. An 85 or 86 vacancy rate is just about 10 percent of the judiciary. It has sometimes been higher than that, if there are many new judges that have just been authorized; sometimes lower, if an election has just occurred and the process moves along.
The Chief Justice's point was that what might have been an acceptable vacancy factor when the courts were not so overburdened is no longer acceptable. A 10 percent vacancy factor 10 years ago was not nearly so injurious to the system as it is now. You are looking at a 10-year increase in court of appeals filings of close to 70 percent. And so a 10 percent vacancy rate hurts the courts much more now than it did then.
One answer might be to increase the size of the judiciary, so that the vacancy factor, which will always exist to some extent, is no longer so injurious. I know the Chief Justice and Justice Souter, and I believe every one of my colleagues, would strongly resist recommending increasing the size of the Federal judiciary. The question is becoming more efficient, more expeditious with the appointment process that we do have. That was the Chief's point.
On the Ninth Circuit, I think almost a third of the positions are vacant. It is our biggest appellate court. I think the Chief Justice this year, as he makes the point every year, he says we have got to address the judicial vacancy problem.
Page 26 PREV PAGE TOP OF DOC
So I think in the context of these repeated statements of his, and of the increased workload of the courts, his comments can be put into better perspective and be given a better perspective and a better interpretation than they have been given by some of the press reports that I have seen.
INCREASED FEDERAL JURISDICTION
Justice SOUTER. Could I add just one thing? You know, there is one other factor in the mix that the Chief was addressing—and it is reflected in what Justice Kennedy spoke of—is the increase in the workload, whether you measure it by cases per judge or cases filed, in, say, the course of this decade. That is simply the increase in the court's jurisdiction.
The reason the number of cases is going up is not simply because the population is increasing. It is increasing because the judiciary is being given more jobs to do.
And I think the Chief's point is—the problem that he is trying to address is a function of the size of the judiciary, the vacancy rate, and the jurisdiction of the court. And part of his plea is, ''Do not increase that jurisdiction of the Federal judiciary, because you are going to exacerbate the problem that we have got now. It can only get worse.''
Mr. ROGERS. Well, if the point is that even though the vacancy rate may not be higher than historical averages that your caseload has increased, and, therefore, the vacancies are much more pronounced than normal——
Page 27 PREV PAGE TOP OF DOC
Justice SOUTER. Yes.
Mr. ROGERS. I think that is your basic point, is it not?
Justice SOUTER. Yes, and that is a function, in part, of jurisdiction.
Mr. ROGERS. Let me just point out two other things in that regard. Number one, the number of senior judges who have chosen to remain active and hear cases on the trial court, especially on the trial court level, are at a record high.
Justice SOUTER. Yes. About 400, I think, all over.
Mr. ROGERS. 469.
Justice SOUTER. Is it as high as that?
Mr. ROGERS. A record number. It is almost 100 more than five years ago, and that number is expected to surpass 500 by next year. So you have got a lot more wise heads there than appears because of the number of senior judges.
Justice SOUTER. Well, without that, the system would not be working. I was talking with one of the first circuit judges last night, and he said that as a matter of course now when he sits in a panel of three on the first circuit, he said almost invariably one of those members is a senior circuit judge and, with great frequency, the other one is a ringer from some other circuit. That is sort of the informal mechanism for adjusting for the difference in the loads.
Page 28 PREV PAGE TOP OF DOC
But you are right. The system would not be working without the seniors.
HABEAS CORPUS AND PRISON LITIGATION REFORM
Mr. ROGERS. And then, number two, on that point of higher workload—the Chief Justice's 1997 year-end report made good mention of the Congress' action in streamlining habeas corpus and prison litigation reform. And he stated that Congress acted wisely. We passed habeas corpus reform in 1996, and he says by June of 1997 that had led to a decrease in habeas corpus applications well below the average number of monthly filings during the 15 months prior to the enactment of the reform in April of '96.
Prison litigation reform, which we passed as a part of this bill in 1996, has led to a 46 percent decrease in civil rights filings from April '96 to February '97. Do you agree that those two actions have dramatically decreased the workload?
Justice SOUTER. Well, you know, I was going to say in the filings of the civil rights cases, the effect was pretty immediate. How the Habeas Reform Act is ultimately going to work out for us is still something we have got to see, because, number one, the one-year statute of limitations resulted in an immediate increase, quite dramatically, of habeas filings to get in in the one-year—under the one-year statute. So it is going to take a little time for that to work out.
And, of course, we have had—although I do not have a figure in my head, we have had an increase in the number of petitions for original habeas corpus writs right in our court as a result of the limitations on the appeals.
Page 29 PREV PAGE TOP OF DOC
So it is going to probably take us another year or two before we see how it works out, but there is no question, as the Chief said, the effects are beginning to show up, and particularly in the 1983 litigation, very, very clearly.
Justice KENNEDY. Well, and it seems to me important to say that we for some years told Congress of our concerns with abuse of the habeas system. The Act addressed it directly. I think the results, as the Chief indicates, are already measurable; and they are salutary. I think it was an important piece of legislation.
And the prisoner reform litigation means that prisoners have to pay, to the extent they can, some part of the cost of filing, and the thought is that this will be some sort of a rationing mechanism for frivolous suits. I simply have not seen enough data to know how that is playing out. We do know that prisoner petitions are down.
INCREASED FEDERAL JURISDICTION
Mr. ROGERS. Well, some have said that the Congress, while giving you some relief on those two—with those two reforms, at the same time we federalized so many more new crimes or former state crimes that we are increasing the criminal case load of the court. But the statistics really do not reveal that, do they?
Justice KENNEDY. Well, I think part of that is because the function of Federal prosecution is a function of the number of United States Attorneys there are, especially when there is concurrent jurisdiction. And I think those numbers have remained relatively constant.
Page 30 PREV PAGE TOP OF DOC
We are very concerned that you do not, for every salutary piece of legislation like the habeas corpus reform, take two or three steps back by federalizing more wrongful conduct. The United States courts are now a major source of employment law for American business. That is, about nine percent of our jurisdiction civilly is in employment cases. Ten years ago, I think it was probably less than three percent.
Mr. ROGERS. Employment cases?
Justice KENNEDY. Employment discrimination, wrongful discharge cases that are alleged to be in violation of Federal statutes.
Mr. ROGERS. And you have had a dramatic increase in immigration cases from 2,000 to 6,600. Those are not really particularly time-consuming or resource-intensive type cases, are they?
Justice KENNEDY. I am not sure. I would think——
Justice SOUTER. I cannot answer that for the trial courts.
Mr. ROGERS. Mr. Latham?
TELEVISING COURT PROCEEDINGS
Mr. LATHAM. Thank you very much, Mr. Chairman.
Page 31 PREV PAGE TOP OF DOC
And welcome. It is a pleasure to have you here. I think you have talked about using television cameras in the courtroom, and I know your feeling. I think we talked last year about any kind of live broadcasts. Have you changed your opinion at all about the possibility of taping deliberations to be used, say, for students in law school, maybe five or 10 years down the road? Is your opinion still that this should be considered?
Justice SOUTER. We have been over something close to that already, and that still is my opinion. The——
Mr. LATHAM. As far as education?
Justice SOUTER. Yes. He did not mention the education aspect.
Mr. LATHAM. As far as law school?
Justice SOUTER. But the Chairman did speak of taping for a later release, and no, I just think the risk of abusing and skewing the process, even with the best will in the world, is just inevitable, and it is not worth it.
Mr. LATHAM. What is your——
Justice KENNEDY. I have taken the position for many years that I think it is a much closer question than my colleagues. But that if some of my colleagues, as Justice Souter and others do, feel that it will affect the way in which our courtroom dynamic works, I will defer to them.
Page 32 PREV PAGE TOP OF DOC
Mr. LATHAM. You know, the court is the one branch, I think, that most people are least aware of, and you are very fortunate in that regard. Are you doing anything as far as setting up a web page or anything to let the American people see more of what is going on?
Justice KENNEDY. Yes. We have a computerized system where you can get our docket sheet, our calendar, our rules, our admissions lists, and our opinions.
Mr. LATHAM. Is there anything about the Justices themselves as far as background——
Justice KENNEDY. Oh. Well, nothing that we put out, so far as I know. But there is much biographical information that I think you can pick up off a standard web site.
YEAR 2000 COMPUTER PROBLEM
Mr. LATHAM. I see your written testimony addresses the year 2000 concern. How much of a problem is that going to be for the Court, and what are you doing?
Justice KENNEDY. Well, as I indicated before you came in, I have not had anybody certify to me that it will not be a problem. They say that they have identified that there can be a problem; and they are working on it; and they are confident they have the people and the resources to solve it. But no guarantee. And because we do have dockets and payroll just like any other agency does, it is a problem.
Page 33 PREV PAGE TOP OF DOC
Mr. LATHAM. That is all. From my understanding, you have covered most everything already, Mr. Chairman. Thank you.
JUDICIAL VACANCIES
Mr. DIXON. It seems to me, Mr. Chairman, that the issue of concern about vacancies is not the number but historically what is the rate of confirmation. According to the Congressional Quarterly, when you go from the 95th Congress to the 105th, the first session, that the rate, the percentage of confirmation, whether it has been one judge—one vacancy or 180—has gone from 92.8 percent, almost all of those who were nominated, to 45 percent.
That seems to be, from our perspective, the concern—the rate of confirmation, the number of people that the President nominates versus the number of people that are confirmed.
Mr. ROGERS. Would the gentleman yield?
Mr. DIXON. I would be pleased to.
Mr. ROGERS. I would prefer to think that that reflects the quality of the nominees as opposed to anything else.
Mr. DIXON. But the point is that they should be acted on one way or the other. You and I agree on many things, but the point is not whether there are retired judges or senior judges sitting to fill the vacancy. In our wisdom, we have these vacancies.
Page 34 PREV PAGE TOP OF DOC
For instance, I understand that there is a bill on the floor to create five new judgeships in Florida. And I am told here that there are already three vacancies of judges in Florida. So to me the real question is whether the Senate is letting up on their responsibility to confirm or reject a nominee.
And it would appear by looking at the Congressional Quarterly, if they are correct, that the rate of confirmations or rejections is about half what occurred in the 95th Congress under President Carter, or in the 97th Congress under President Reagan, which was 97.8 percent.
Mr. ROGERS. If the gentleman would yield. Of course, the 105th statistics that you refer to only cover the first session. I mean, we are only half through this 105th.
Mr. DIXON. So assuming that we——
Mr. ROGERS. Hope springs eternal, and there are now 45 vacancies. Let us hope——
Mr. DIXON. If we go at the same rate the rest of the 105th Congress as we have the first part of the 105th, then we will be up to probably 90 percent.
Justice KENNEDY. Well, in all events, the Constitution commits some matters to the political branches and not to us. We are the final interpreter of the Constitution, in many instances, just because we are chronologically last in line.
Page 35 PREV PAGE TOP OF DOC
But the confirmation process is committed to—the appointment process to the President and the confirmation process to the Senate. And it is their constitutional responsibility to determine the standards for confirmation, the standards for appointment, and to the processes for making that determination.
All we can do is speak from the standpoint of judicial administration, and looking at statistics and numbers and vacancies and say that we think that there is a problem in continuing to keep the courts current if vacancies are not filled. The Chief Justice suggested that there be action up or down on some of the nominees that have been pending.
INCREASED FEDERAL JURISDICTION
Mr. ROGERS. Chief Justice Rehnquist, in his annual report, indicated that the Federal judiciary is in danger of becoming so large as to lose its character as what he called a ''distinctive judicial forum of limited jurisdiction.'' Do either of you have any concerns about the effects of an expanding Federal judiciary and its impacts on the Federal judicial system? And what does he mean by losing its character as a distinctive judicial forum of limited jurisdiction?
Justice KENNEDY. Well, the Constitution, as you know, creates courts of limited jurisdiction. The design has been, and the tradition has been, that the bulk of judicial business is conducted by the state judiciaries. Over 90 percent of litigation today is in the state courts.
Page 36 PREV PAGE TOP OF DOC
The idea of a Federal judiciary was a judiciary that had particular expertise in matters that should and could be tried only in a Federal court—complex antitrust cases, security cases, certain crimes. If you continue to overload the judiciary with jurisdiction so that its numbers have to expand, you are going to find it more difficult for us to attract highly skilled attorneys, highly skilled professionals to our bench.
You are going to turn them into police court judges. They are going to be hearing criminal cases most of the time. That is not the design of the judiciary. As it becomes larger, the problems that we have in finding highly qualified people, and in confirming highly qualified people, will be exacerbated. If you have a 10 percent vacancy rate now, it is going to be even more difficult to fill the vacancies that you create necessarily by an expanded judiciary.
I think it would be tragic if the numbers of the judiciary increased substantially more than they are now. So we are now close to 900, and I think that ought to be a cap.
Justice SOUTER. Just two details. The effect of increasing jurisdiction, and the pressure to increase, has shown up already in one way that you and I, Mr. Chairman, were alluding to earlier this morning. And it is going to show up in another way in which the dialogue within the committee referred earlier.
You spoke of the number of senior judges who were working, and the number is—I said it was around 400. It is, in fact, higher than that you pointed out. I cannot give you an exact statistic, but I can tell you that the majority of those senior judges at the trial level, where they are really keeping the system going, are sitting on civil cases.
Page 37 PREV PAGE TOP OF DOC
The criminal cases, which by virtue of the speedy trial rule demand the most immediate attention, have necessarily got to get the attention of the regular sitting judges there, 100 percent of whose time can be budgeted for that purpose. So there has already been a shift in the amount of civil litigation which is actually being handled by the active, the non-senior Federal judiciary now.
The second implication of a demand for greater size is an implication going to the capacity of the Senate to scrutinize nominees. I mean, it is one thing to have to keep in effect a Federal judiciary, say, of 700 judges supplied with judges. It is another thing to have to go through the same process for a Federal judiciary of 800 or 900 or 1,000.
There is simply a limit to the amount of legislative time that can be spent on this, and I think if the Federal judiciary continues to grow, the scrutiny that can be given to the nominees is necessarily going to fall or the system is going to start congealing.
So there are I think very insistent institutional reasons to want to keep that number from going up.
Mr. ROGERS. Should we cap it?
Justice SOUTER. If that is the only way to discipline, in effect, the process, sure. I would rather see a cap than simply see the number inching up every year. I do not have a great deal of faith in those kind of artificial restraints. The faith has got to be placed in the responsibility of Congress simply to recognize that when the jurisdiction goes up, somebody has got to do the work. And sooner or later, that is going to mean more judges.
Page 38 PREV PAGE TOP OF DOC
I would rather keep everybody sort of hammering away on that point than to put my faith in a mechanical cap. But if the mechanical cap is the only way we can have any hope for it, then let us have a cap.
Justice KENNEDY. But if you have a mechanical cap, plus an increase in the jurisdiction, that is a recipe for disaster.
Justice SOUTER. Yes.
FEDERALIZING CRIME
Justice KENNEDY. So you simply—the Congress simply must be very, very cautious and exercise the utmost discipline in resisting the cry to federalize every current social problem.
The Federal balance—you know, people think of checks and balances as automatic, and in a large sense it is. But it also requires the constant attention of the political branch. Federalism is almost completely committed to the political branch. You determine what the Federal balance is.
There are few constraints that we can or ought to put upon you to police that balance, and you have to make that judgment; and you have to understand that there is a tremendous cost to Federal intervention; and you have to believe in the Constitution. There are three or four mechanisms in the Constitution that the framers put in, and one is federalism.
Page 39 PREV PAGE TOP OF DOC
And if you do not believe in it, then you are sacrificing probably a third of the protection that the framers gave when they made the constitutional design. I understand it is difficult for you to do, but it is committed to you, not to us.
Mr. ROGERS. Well, I hear that. I think the Congress needs to be very, very cautious about federalizing a crime. But in this day and age of instantaneous communications worldwide, not to mention nationwide—and the new interstate commerce that is going on in new and fundamentally different ways—it creates the need to discipline those who violate our criminal laws in ways we never dreamt of 10 years ago, much less the founding fathers.
Justice KENNEDY. Well, if the states do not have the resources, then perhaps the Federal Government must do it. But——
Mr. ROGERS. Well, you could not have the state courts, the state laws, make it a criminal activity to pass pornography on the Internet when the crime is committed in New Jersey and maybe the impact is in California?
Justice KENNEDY. Assuming that that act is constitutionally punishable, I see no reason why the state in both the sending and the receiving jurisdiction cannot prosecute.
Justice SOUTER. And to the extent that the Congress, as you point out, has got to consider new criminal methodology in deciding what the criminal jurisdiction of the United States is going to be, it is equally important from the standpoint of the Federal judiciary to look at what has been criminalized up to this point and say, ''Do we still need to give this, in a system that is not infinitely expansible, the Federal prominence that it has had?''
Page 40 PREV PAGE TOP OF DOC
It may very well be that the insistence for new criminal jurisdiction in one area is an argument for curtailing it in another in order to keep the Federal system manageable.
Mr. ROGERS. Well, it seems to me that while we must be mindful of the load of work that we are putting on a finite system, i.e. the courts, that at the same time we have the responsibility of trying to keep up with the times in establishing Federal crimes where state laws would be ineffective.
And the way the technology of this world is moving and changing every day, it seems to me it is going to continue to demand that we, in the Congress, federalize some crimes that did not exist before or were ineffectively attacked by state jurisdiction.
So I wonder—I am not sure that I agree with you fully that the size of the Federal judiciary can be set at some magic number.
Justice SOUTER. Well, I am not suggesting that it ought to be set at a number. But I am suggesting that there is a direct correlation between the size of the Federal judiciary and the quality of the Federal judiciary, and we have got to accept—both you and the judges have got to accept the responsibility for that.
Mr. ROGERS. Well, we are willing to take ours. However, I do not think the quality of the Supreme Court is any less than it was in times past. In fact, I think it is a good deal higher.
Page 41 PREV PAGE TOP OF DOC
Justice SOUTER. We are still at nine.
Mr. ROGERS. But the quality is better.
Justice KENNEDY. But the whole point of our last discussion is it is your judgment and it is your prerogative to determine the balance of federalism, but you must be aware of the costs. And so long as you are aware of the costs, both to our constitutional tradition and to the judiciary, of creating new Federal acts, so be it. And I agree with Justice Souter. For every new crime you create, you might look at decriminalizing other activity where Federal monies, Federal expertise has designed systems that the states can implement.
Mr. ROGERS. Point well taken.
USE OF MODERN TECHNOLOGY
Number two, the courts have been reluctant—and I have tried to find the best word for this that I could find—have been reluctant to modernize, to use the modern means of communication, of training, of decisionmaking, i.e. computers, word processors, training long distance by satellite, what have you.
I personally think—and I have ridden the AOC fairly hard on this type of thing—the courts need to try to utilize the modern means of communications and of training in order to make up for the lack of personnel. I think we could save money and save personnel if the courts utilized more than they do now the modern methods that the electronic age has offered us. Do you have a problem with that idea?
Page 42 PREV PAGE TOP OF DOC
Justice KENNEDY. I do not have a problem. Our court, we think, is current. As our new clerks come in each year, we find that we need to have software systems that they can use, in part so they are marketable when they leave, and in part so we can use their skills when they come.
The influx of new law clerks every year is one way to keep the courts up to date, and this applies to the district courts and the circuit courts as well as to us.
INCREASED BANKRUPTCY FILINGS
Mr. ROGERS. Now, one major source of growth in the Federal caseload is the increase in bankruptcy cases. They have climbed from 800,000 filings a few years ago to an expected 1,400,000 this year, despite the health of the economy that we read about—numerous proposals being floated to reform the bankruptcy statute.
In your view, is the bankruptcy area in need of an overhaul?
Justice KENNEDY. We overhauled it recently—I would say 10 or 15 years ago—and to good effect. I am not sure what to make of those numbers in an expanding economy. Perhaps the subtext of your question is to wonder if there is an abuse. I cannot speak to that, Congressman. I will have to think about that.
Mr. ROGERS. Justice Souter.
Page 43 PREV PAGE TOP OF DOC
Justice SOUTER. Well, I am in the same boat. I do not have an opinion. I have assumed, and I may have assumed quite wrong, that the growth in the bankruptcy filings, given the state of the economy, was probably a reflection of the ease with which consumer credit is extended. That is probably too simplistic, but that is what I have assumed.
So if that were correct, I do not know whether bankruptcy ought to be given a hard look or consumer credit policies given a hard look. I just do not know.
SPLITTING THE NINTH CIRCUIT COURT OF APPEALS
Mr. ROGERS. Justice Kennedy, let me ask you about the Ninth Circuit, since Mr. Dixon did not. Are you satisfied that the Commission on Structural Alternatives for the Federal courts represents a good way to examine what should happen with the Ninth Circuit?
Justice KENNEDY. Well, I certainly thought that the Congress was wise in asking the Chief Justice to appoint all of the members of that Commission so that they could talk with the bench and the bar around the country about circuit lines. In a way, the issue has been around so long that there is not a lot new to say about the Ninth Circuit.
The five states of the Northwest, according to many of their judges, would form a logical and a very desirable unit. They want to have their chief judge, their own administration, so that they can make their own contribution to sound judicial administration.
I have always been concerned that a court of 28 active judges simply could not function as a close collegial court. If I were a successful practitioner, and you asked me to become a circuit judge and be the junior judge on a 28-judge court, I might have to give it a second thought.
Page 44 PREV PAGE TOP OF DOC
We see systemic problems emerging with the Ninth Circuit. Part of the problem is the State of California—our state, Congressman. California now has about as many people as were in the United States at the time of the Civil War. I do not know the precise number—it is about 32 million. It is a huge state. It would need 15 circuit judges just for that state.
So there has been some thought given to splitting the state for circuit purposes, and you would have two circuits. I have yet to see a satisfactory mechanism for resolving the conflicts that those two circuits within the State of California would have without the split of the State being prejudicial to the litigants and to the bar, and without adding a year to the litigation time. This, I think, is unfair to the state.
Ultimately, this is a political judgment to make. I am anxious to see the commission report. I do not think that the justice system is necessarily well served by keeping the Ninth Circuit intact. Each of those judges is very dedicated. They love the circuit. They love its traditions. They have great respect for each of their colleagues. They are very hardworking judges. But I think we have to get a hard look at splitting the circuit.
Mr. ROGERS. Mr. Dixon.
Mr. DIXON. Thank you, Mr. Chairman. Mr. Chairman, I thought your question was, is this the best methodology to proceed with. And I gather from your answer, Justice Kennedy, that in the political system that we probably came up with the best methodology, and that was to have a commission appointed by the Chief Justice of the Supreme Court.
Page 45 PREV PAGE TOP OF DOC
Justice KENNEDY. Yes.
Mr. DIXON. So the answer is yes, that we did come up with probably the best solution to a political problem.
Justice KENNEDY. Well, I am not so sure it is a solution. You ask them to give you information, so that you can make the judgment. And I assume they will give you some pros and cons, and perhaps a recommendation. I am not sure.
Mr. DIXON. It is probably better than just us—either the Judiciary Committee or the Appropriations Committee—redesigning the Ninth Circuit.
Justice KENNEDY. Well, I think it gives you the basis from which to begin some deliberations.
FEDERALIZING CRIME
Mr. LATHAM. I just had one question I guess from your statement before as we have a tendency to federalize crimes here. And your statement was then we should look at decriminalization of other things. Would you have any suggestions? What would you decriminalize to make room for the expanded workload?
Justice SOUTER. Well, that was my suggestion. I do not have any candidates. I would not start—I did not come prepared to do it. I have not been through the U.S. Code, but I probably would think very inhospitably of increasing the juvenile jurisdiction very much, for example. That is not decriminalization. That is going the other direction. So I would be more prepared to ask you to go slow there than to tell you exactly what you ought to lop off.
Page 46 PREV PAGE TOP OF DOC
Mr. LATHAM. Would there be any way of getting suggestions? I mean, I do not disagree with you. I am real concerned about the growth of the——
Justice KENNEDY. Part of it is discretionary. It used to be if you had a bank robbery—the old saying was—''If they have got a good strong case, the feds will do it. If not, they will give it to the state.'' And both this and the past administrations and the Justice Department have been good, I think, about setting forth guidelines to give the states primary responsibility, for instance, in the area of bank robbery.
So much of what we seek to accomplish in decriminalization can be accomplished by making sure the states have adequate resources to prosecute crimes within their jurisdiction and allowing the United States Attorney General, where concurrent jurisdiction exists, to permit the state prosecution to proceed.
Mr. LATHAM. Do you think large increases come because of the sometimes more severe Federal sentencing guidelines? I mean, I can think of a few cases where the state—the citizens would rather have things go on the Federal level because of the potential for a more severe sentence.
Justice KENNEDY. I have to assume—and I have no empirical evidence for this—that state and Federal prosecutors will sometimes sit down and say, ''We want the Federal—agree that the feds will do this because of the increased sentence.'' I just have to assume that is the case. I have no basis for it.
Page 47 PREV PAGE TOP OF DOC
Justice SOUTER. We also have to assume that one reason that Congress does not get more of an outcry from the states when the criminal jurisdiction shifts is because the buck is shifting along with it, literally the buck. The Federal Government is going to pay the bill for the prosecution, the investigation, the incarceration, and money is tight. And what gets lost in the process is federalism.
You know, there is a lot that states can do, but they have got to pay the bill for doing it, too. And when somebody comes along and is willing to pay that bill, it is tempting to let them do it.
Mr. LATHAM. I would just ask if you found areas where you could decriminalize or move, you know, to make—move some of these crimes back to the states, or your workload in an appropriate manner. If you could offer suggestions, that would be very helpful.
Justice SOUTER. Well, in all candor, I probably would be reluctant to do it, because I do not think we should make those suggestions without, reviewing the whole darn Federal criminal code.
Mr. LATHAM. And that is our difficulty.
Justice SOUTER. Yes.
Mr. LATHAM. Thank you.
Page 48 PREV PAGE TOP OF DOC
Mr. ROGERS. Mr. Dixon.
JURY SYSTEM
Mr. DIXON. Either Justice—I referred earlier to a commission that had made some findings and recommendations as to restructuring of the jury system. Justice Kennedy or Justice Souter, I do not know if you want to comment on this, but one of the suggestions—I am reading from an editorial in the Post today—would allow jurors to take notes and ask questions of the witnesses through the judge, which I thought was kind of a revolutionary idea. I have been in courtrooms where jurors have blurted out things.
But is that something that you think that would be helpful to the system?
Justice KENNEDY. Okay. Whether we like it or not, we have the jury system. I like it.
Mr. DIXON. Right.
Justice KENNEDY. I think it is very important, as I have indicated. So we have to make it work. If you have a complex antitrust case, you will sometimes have jurors come in and they are infuriated that they have been given this case. It is too complex. So you have to find ways to assist the jurors.
One of the ways to do it is to take notes. The other way is to let them ask questions of the judges. Another way is to let them discuss it as the case proceeds.
Page 49 PREV PAGE TOP OF DOC
Now, attorneys do not like this, because every attorney thinks that the juror does not know anything until the attorney has stated everything he or she has to say. And there are also certain problems, incidentally, in control. You do not want three or four jurors talking about a case in the absence of the other eight or nine.
But we have to do more to make sure that that jury is well informed, that it can deliberate on the case in a real decisionmaking environment, not an artificial decisionmaking environment.
If somebody came in to this room and locked the door and said, ''The 12 of us are going to be together for four months, and the only thing we cannot do is talk about the only thing we have in common,'' that is a little bit odd. So I think we have to take a good hard look at the jury system. It is sacrosanct as an institution. It is not sacrosanct as to how it does its job.
Mr. DIXON. Well, one of the things that kind of surprised me here—and I guess the——
Justice KENNEDY. I have not seen the report, and I do not——
Mr. DIXON. I understand that. The focus is Washington, both the local courts and the Federal courts. It surprised me to read in this editorial that one of the suggestions is that the judges should thank the jurors personally. I thought that went on all the time, that judges thanked them for their services.
Page 50 PREV PAGE TOP OF DOC
But the comments I hear from jurors is that although we think it is a very important ingredient in the judicial system, they are treated like cattle. They are not given dignity or respect. And when I saw this particular point, that the judge had thanked the jurors, I just thought that was just common courtesy, and that most judges were doing that. Evidently, maybe they are not doing that.
Justice KENNEDY. The Federal system had a program in place several years ago to study juror utilization, and we have made tremendous advances in the Federal system.
Rather than to keep the jurors waiting around forever and ever, they call them in advance, identify the days they can serve, so that they can go home. Good trial judges know that they have to have excellent relations with that jury, and that this is a marvelous civics lesson.
Jurors come out and they are sometimes so very impressed with that trial judge. It is the closest they will ever come to the judicial system. And the Federal system is doing a marvelous job of educating the judges, and I would think that the increased awareness that state judges have of good public relations will serve them well.
Mr. DIXON. Mr.—excuse me.
Justice SOUTER. No, I was just going to echo that. I think we got copies of that report a couple of days ago. I looked at the summary at lunch the day before yesterday, and I noticed the same thing you did.
Page 51 PREV PAGE TOP OF DOC
I think it was in connection with the reference to thanking the jurors that there was a recommendation that, at the end of the trial, a judge go into the jury room and be willing to answer questions from the jurors. I think that is one of the indispensable functions.
I was a trial judge for five years, and with the exception of one case, which I remember, I always sat down with the jury when the case was over. I would never tell them whether I agreed with their verdict or not. But beyond that, I would answer just about anything that came up.
Mr. DIXON. And certainly thank them for their service.
Justice SOUTER. Yes. And, you know, they realize that they are not being taken for granted. But a judge learns an awful lot from sitting down like that. I would not have missed one of those conversations.
Mr. ROGERS. Mr. Taylor.
Mr. TAYLOR. Thank you, Mr. Chairman.
IMPROVEMENTS TO THE SUPREME COURT BUILDING
According to the testimony provided by the Architect regarding the care of the buildings and grounds account, there are six capital budget items requested. It is about $2.8 1/2 million. What are those six items and—or the ones that just come to mind? You do not have to name them all.
Page 52 PREV PAGE TOP OF DOC
Mr. ROGERS. If the gentleman would yield, we have the Architect waiting to testify.
Mr. TAYLOR. Okay.
Mr. ROGERS. We could perhaps deal with him on that, if you would like.
Mr. TAYLOR. Okay. Well, I was going to complete the question, but I will wait and get that from the Architect. Unfortunately, I will not be here, so I will leave it in writing.
Justice KENNEDY. Well, he has a $22 million estimate, which he assumes is going to result from a $2 million study he wants to make. And he has this for the complete renovation of the basic building systems—wiring, plumbing, electric, roofing, and also some additions for perimeter security included in the overall budget, although not the $22 million figure.
Congressman, we are not the technical experts. We leave that to the Architect of the Capitol. We have indicated that we hope you agree with him, so that our building can be modern and up to date and that we can continue to stay in it.
Mr. TAYLOR. Well, you mentioned that there have been 5,000 to 7,000 calls handled by the Clerk's office. Have these offices witnessed an increase now, or is there going to be? Do you anticipate increasing calls? I do not know all of the things that the Architect will be recommending, but I assume it has to do with modernization more than repair. I mean, there——
Page 53 PREV PAGE TOP OF DOC
Justice KENNEDY. Within our own budget, we have a telecommunications position we want filled because these calls are increasing.
You mentioned the web site earlier. Because of the immediate availability of our opinions, because of the web site, we get many, many more calls, and people now know when the oral arguments are going to be in advance, because they can pick that up from the web site.
So the Clerk's office has an automated answering system that works extremely well, and the Clerk is our public relations arm. We do not talk to the public, or even to the attorneys; the Clerk's office does. They receive high marks from the attorneys, and I think from the public, on getting fast information. And we will continue to be just as up to date as we can in that area, Congressman.
Mr. TAYLOR. Well, I guess the summation of what I am trying to ask is you feel that for modernization for new technology, and that sort of thing, this nearly $3 million increase on top of the $22 million is warranted. Could it be done this year or in 1999?
Justice KENNEDY. I am not so sure that the Architect's budget focuses on the specific electronics that we need. He is trying to give us the basic system so that we can put in the wire, and he tells us we need that.
Mr. TAYLOR. Thank you, Mr. Chairman.
Mr. ROGERS. To both of you, we appreciate very much your appearing here this morning. This is a remarkable process that our founding fathers dreamt up. There is no place on earth that I am aware of where the people's representatives can question the highest court of that land on the details that we are obligated, we think, to ask you here.
Page 54 PREV PAGE TOP OF DOC
I do not know any place in the world where we can ask the highest court of that land how much pressure are in the tires of the vehicles that carry you around, and such mundane things as that. It is remarkable that we have this system that we have in this country.
And, number two, it never ceases to impress me, each time we have this hearing, with the separate, independent branch that the courts represent, meeting in open session before the world with another branch who is obligated to finance your necessary operations.
And we will give you, by and large, what you ask. I mean, that is, I think, the obligation that we have under the Constitution. We feel obligated to find out what it is and illuminate what it is you are asking for. But if you say you need it, you are going to find an open ear here. And so that is sort of the way we look at it, and we hope we are taking the right approach toward it. It is sort of a ticklish friction point in the founding fathers' democratic machine.
So we appreciate your being here and answering the questions that our members have posed to you. And we trust that you will give the Chief Justice and your colleagues our respects and greetings.
Justice KENNEDY. We will be pleased to do that.
Thank you, Mr. Chairman, both for your courtesy and for your very thoughtful approach to the constitutional position that we are both in. And we appreciate all that you and your colleagues do in the discharge of your responsibilities to the Constitution of the United States.
Page 55 PREV PAGE TOP OF DOC
Mr. ROGERS. Thank you very much.
Justice SOUTER. Thank you.
Mr. ROGERS. Good to see you.
[Whereupon, at 11:52 a.m., the subcommittee proceeded to other business.]
"The Official Committee record contains additional material here."
Wednesday, March 11, 1998.
SUPREME COURT OF THE UNITED STATES
CARE OF THE BUILDING AND GROUNDS
WITNESSES
ALAN M. HANTMAN, ARCHITECT OF THE CAPITOL
STUART PREGNALL, BUDGET OFFICER
DAN HANLON, DIRECTOR OF ENGINEERING
Page 56 PREV PAGE TOP OF DOC
Mr. ROGERS. How are you?
Mr. HANTMAN. I am well. And how are you, Mr. Chairman?
Mr. ROGERS. We are pleased to have with us the Architect of the Capitol, Alan Hantman, who has jurisdiction over the care of the Supreme Court building and grounds. And we welcome you here. We'll make your statement a part of the record, and we'd be pleased to hear a summary of that, if you care to.
OPENING STATEMENT
Mr. HANTMAN. Thank you. I am pleased again to appear again before this committee. As you recall, last year was my first initial appearance before this committee. I have been Architect of the Capitol since February 3rd of 1997. And it's been an interesting first year, Mr. Chairman. I've really been immersed in learning and evaluating the complexities of the agency and the responsibilities of the position.
As you pointed out, my responsibilities for the judiciary branch, as Architect of the Capitol, is for the structural and mechanical care of the United States Supreme Court building and grounds. And we're really not charged with issues relative to custodial care, which is under the Marshal of the Supreme Court.
In general, Mr. Chairman, the budget request for the buildings and grounds for fiscal year 1999 amounts to $5.9 million, which is a significant increase of some $2.5 million over the fiscal year '98 appropriation, which was $3,400,000.
Page 57 PREV PAGE TOP OF DOC
CAPITAL BUDGET ITEMS
The fiscal year 1999 capital budget request is grounded in a comprehensive, systematic study, and planning effort with in-depth involvement of the Court. There are some 13 capital projects identified for the Supreme Court building and grounds, for the five year period which begins in 1999.
And the total estimated funding for that five year period is currently estimated, before a lot of our studies are done, as an order of magnitude of $30.9 million.
The bulk of that amount, $22 million is attributed to a project to provide an overall building improvement and systems upgrade, which is the first such comprehensive planned project for the building since its construction in 1934.
The current fiscal year appropriation includes $225,000 for a study on the project, with a follow up of $2 million in the 1999 request to actually do detailed design and construction documents.
The $2 million for fiscal year 1999 is a no year allocation, so that we expect to be able to get into construction documents the next year, which may go into the following fiscal year, when we will actually request construction dollars.
The other important project for the Court is the perimeter security enhancement project, which is currently estimated at $5.3 million. A preliminary study provided by funds in fiscal year 1997 is being completed right now. And we're requesting an amount of $500,000 for detailed design and development and for preparation of construction documents for implementation of the study.
Page 58 PREV PAGE TOP OF DOC
Of course we're now going to be bringing that study to the security committee of the Supreme Court, which is headed by Justice Souter, and various support staff there, the Marshal, Dale Bosley, and Jim Duff, the Administrative Assistant to the Chief Justice.
So, once we get some feedback from the Security Committee itself, we'd certainly be able to come back to the Committee, and talk about their reaction, and what portions of this study they do, in fact, recognize as being important, and something they want to go forward with.
It's important to note, Mr. Chairman, that the requirements in all of our budgets simply do not disappear if they're not funded, or if they're deferred. One thing I've been looking at throughout the Capitol buildings is that there's a recognition that the capital budget is often an easy place to cut.
Clearly, if you have staff doing service jobs throughout the Capitol, it's more difficult to eliminate those service functions as they are justified. But capital projects have, in fact, been cut down very significantly over the past number of years.
In the legislative branch appropriations hearing, I spoke about the same issue of capital budgets in that branch going down from $33 million in 1993 down to $14 million in 1997. And that's been turned around, gratefully, by the oversight committees. And last year, we were provided in fact some $33 million, to begin to dig ourselves out of the hole that deferred maintenance has brought us to.
Page 59 PREV PAGE TOP OF DOC
A lot of the equipment that we see in the Supreme Court has outlived its usefulness. It's gone ten, 20 years beyond its expected life.
And this whole master plan and restudy of the facilities in the Supreme Court will point us in the right direction, in terms of what we need to address, and how we need to bring that 60 year old building back into modern standards, relating to telecommunications, electrical, and mechanical issues.
Many of the reasons I felt that there was such a need for that was the replacement of the aging building systems, technological advances, regulatory compliance requirements that we are faced with, and security issues which are very real.
We have just presented a budget to the legislative branch regarding the Capitol itself, and we've put in for a $20 million perimeter security program there, as well, which is being very seriously considered at this point.
But I assure you, Mr. Chairman, I'll work closely with you, and the subcommittee, as well as the Court, between now and the time the subcommittee marks up the bill, to take a look at what's rational, what's adequate.
We recognize that this is a time of a zero growth budget, and very difficult to obtain funds. But Mr. Chairman, the needs are real.
That concludes my comments. And I'd be more than happy to respond to any questions you might have.
Page 60 PREV PAGE TOP OF DOC
[The statement and biography of Mr. Hantman follows:]
"The Official Committee record contains additional material here."
PHASES OF CAPITAL PROJECTS
Mr. ROGERS. Well, I'll be brief because of the hour, and we covered some of this with the Justices, that you, I'm sure heard, as we had their hearing.
But you're asking $2 million for the design of the replacement of the utility systems in the Supreme Court building. We just gave you $225,000 for what was called a schematic study. And I understand that's not yet complete.
Mr. HANTMAN. That is correct.
Mr. ROGERS. But you're going ahead with the $2 million that you want for the design. Why are you not planning a pause between when you see the schematic report, before you actually design the project. Shouldn't that be the logical way that you would do that?
Mr. HANTMAN. In terms of this conceptual schematic report itself, your point is certainly well taken. We don't have the information in from that study as of yet. But we feel very comfortable with the time that we have allotted left in this fiscal year, so that we can get started with an actual review and approval process, by both the Court and by the oversight committees. And that the $2 million we're talking about, Mr. Chairman, is no-year funding.
Page 61 PREV PAGE TOP OF DOC
So that, in all likelihood, you're correct. Some of that funding would not be spent in fiscal year '99. But the idea of putting another full year between the basic study, and requesting the funds to proceed, on the basis of a project right now, which is really such in crying need to get done, we didn't think we could give it another year.
Mr. ROGERS. Yes. Well now, what will be the approval process?
Mr. HANTMAN. Well, even with the perimeter security study that we are wrapping up right now. It's in final draft. We have submitted it to the Marshal, and will have a meeting with the security committee, headed by Justice Souter.
Once they review this information, we would then talk to, I would assume—the Chief Justice, and all the other Justices, as well, regarding what they are comfortable with, what they think is appropriate, relative to, say, the security effort.
And then, we have to come back to you and the Committees, sir. And we have to take a look at what is being recommended over here. I think the community needs to be involved in this, also, if there are implications that might impact the community. Let them know what is being considered here, and then come back for actual construction funding.
Mr. ROGERS. Well, taking the perimeter security project as an example, it's taken two years from funding of the schematic study to get to the design phase. And the schematic study is still not complete.
Page 62 PREV PAGE TOP OF DOC
Of course, the utility upgrade project is an enormously much larger project than perimeter security. But why isn't a two year time period from schematics to design a more appropriate schedule for this replacement project, as it was for the perimeter project?
Mr. HANTMAN. What we're trying to do, Mr. Chairman, is there are so many needs throughout the Supreme Court building that have been on hold for a long time, that we're trying to take a look at not spending money on an interim basis, and then having to re-do it in a final form, down the line.
Telecommunications clearly is an issue that needs to be addressed with respect to the Supreme Court, as it does throughout our Capitol Hill campus, as are structural issues relative to driveways and sidewalks. We don't want to have to do things on a temporary basis, and then come back and re-do them in a final form.
So, we're trying to move the process along. Clearly, the review and approval cycle is really what will determine ultimately when we actually put a spade in the ground, so to speak, and start on projects, providing funding is available.
Mr. ROGERS. When do you anticipate that?
Mr. HANTMAN. Relative to the perimeter security project?
Mr. ROGERS. Yes. Perimeter security and the replacement project.
Page 63 PREV PAGE TOP OF DOC
Mr. HANTMAN. Again, part of that issue will come down to review and approval. But we are looking at fiscal year 2000, and $4.6 million at this point in time, for the security project, the year after the design is done.
We need the $500,000 next year for the perimeter security, to do the detailed design work, assuming that we go through the review and approval process.
If we obtain the $2 million design funds in fiscal year '99 for the building project. And then, we do have a one year hiatus, year 2000 for the actual study for the total building improvements. And we're not asking for, in our master plan, any significant dollars, until some $5 million in the year 2001.
So, that is a much longer process, as you well point out, Mr. Chairman. And I think we have the breathing room we need for that larger project.
Mr. ROGERS. Now, on the perimeter security project, you're asking a half million dollars for design of the project. And that's based on a preliminary study that hasn't yet been finalized. How can you——
Mr. HANTMAN. The Marshal currently has a draft of that. And we're marking it up, as per his comments. And we're virtually ready within the next couple of weeks, to meet with Justice Souter and his committee, on that.
Mr. ROGERS. And when can we expect to see a copy of that preliminary report?
Page 64 PREV PAGE TOP OF DOC
Mr. HANTMAN. I think once we meet with Justice Souter, and they give us some indication of what direction they think we should be going, we'd be more than happy to come to you, sir, with that report.
Mr. ROGER. Well, we'll see it before we mark up, right?
Mr. HANTMAN Yes, sir. That will be the case.
Mr. ROGERS. Now, on the larger project, the renovation of the building, I'm going to call it, tell us what that will entail.
Mr. HANTMAN. All the base building systems, Mr. Chairman, have been there, and have been in place since the early 30's. So, the building's basically open since 1935.
A lot of those systems have truly outlived their useful life. So, we're going to look top to bottom at the facility. Not only electrical, mechanical, air conditioning, but also telecommunications, life safety systems, ADA criteria, accessibility. All of these issues need to be looked at.
A major issue also, Mr. Chairman, is the fact that the building was designed for some 170 or so people, and my last numbers, I think, there's some 380 people in that building, utilizing spaces that were not originally designed for office usage.
Page 65 PREV PAGE TOP OF DOC
So, we need to take a look at a master plan for where the Court is right now, with all its people, how they're using their space, and what recommendations might flow from that. As well as the building core, and shell, and all of the utility services in that building.
It's a stem to stern review of where that building is, and where we need to take it. So that——
Mr. ROGERS. So, it's going to be more than the infrastructure. You're going to be looking at possibly re-configuring rooms in the building?
Mr. HANTMAN. I would think that would have to be part of any intelligent master plan, Mr. Chairman.
Mr. ROGERS. Are you thinking about putting, just in case they ever need it, television co-axial cables through the building?
Mr. HANTMAN. Well, I think it's up to the Court, Mr. Chairman, in terms of what type of communications that they want to recommend to this committee.
DISRUPTIONS AND INCONVENIENCES DUE TO RENOVATIONS
Mr. ROGER. Are the Justices and the Court officials aware of the magnitude of these projects we're talking about, and the efforts that are going to be required to carry them out, and the inconveniences that they're going to face as we go through this?
Page 66 PREV PAGE TOP OF DOC
Mr. HANTMAN. Mr. Chairman, until one goes through a renovation, restoration such as this, I don't think anybody really realizes what that's all about.
Mr. ROGERS. Yes.
Mr. HANTMAN. Clearly, inconveniencing anybody who has a full schedule, they're trying to get their job done, is not a happy situation. Whether we're talking about the Capitol building, the Rayburn building, any building.
There will be inconveniences. And one of the things that will clearly impact the time frame for doing the project, and the cost of the project, will be how many phases we need to carve it up into, to minimize the inconveniences to the Justices.
Mr. ROGERS. Will they continue to occupy the building in full as we proceed?
Mr. HANTMAN. The intent at this point is that the master plan would certainly look at that. We're not aware, at this stage of the study, in terms of what options we have, to physically move people around, and have essentially turn-around space, where if we had to renovate this room, where would this committee meet in that time frame?
That type of situation. But conceptually speaking, depending on the magnitude of the work, and I think it will be significant, we will have to have some dislocations during the project.
Page 67 PREV PAGE TOP OF DOC
Mr. ROGERS. Would they be better off to move to a temporary location elsewhere, and leave you the building to work on?
Mr. HANTMAN. We've been working, as you know, Mr. Chairman, in the House office buildings, and the Senate office buildings, also upgrading them, from a perspective of mechanical, electrical, telecommunications, air flow, indoor air quality, all of these issues. And we've been addressing the renovations almost a wing, or a suite at a time.
And I think that's inherent in how we would also approach the Supreme Court. We have not vacated any of the House office buildings. We've done them sections at a time.
Mr. ROGERS. So, you don't anticipate that the Court would have to relocate temporarily to another building?
Mr. HANTMAN. No. We do not.
MAINTAINING INTEGRITY OF ORIGINAL BUILDING DESIGN
Mr. ROGERS. Will the appearance of the building change any, by either one of these two projects?
Mr. HANTMAN. When we talk about the largest project, which is the total retro-fit and renovation, we would want to be as true and faithful to the original design as we possibly could, while we integrate modern utilities and, communications issues.
Page 68 PREV PAGE TOP OF DOC
With the issues relative to security, there would have to be some physical ramifications, of making sure that the perimeter of that building was secure. And these are the sensitive issues that we need to address with Justice Souter and his committee, and the full Court, as well.
A lot of sensitivities, as you're well aware, Mr. Chairman, throughout all of Washington, and very sensitive facilities, and how they are subject to potential negative impacts.
Mr. ROGERS. On the perimeter security program, I know you don't have the details yet, and it's perhaps some weeks away from finalization. But in general, are you talking about perhaps some sort of a fence or barrier, on the outside edge of the property of the Court?
Mr. HANTMAN. The type of elements that we're looking at, Mr. Chairman, really are very much in line with what we've recommended for the Capitol itself. We've had a perimeter security plan there, which deals with sensitivity to the original Olmstead walls. And we would do the same thing here.
Bollards that are sensitive to aesthetics in lieu of pots, planter pots, that are ubiquitous on Capitol Hill at this point in time.
So, the same type of themes, of working with the existing palette of walls, of stonework, and the introduction of bollards, and security measures, are very much in demand.
Page 69 PREV PAGE TOP OF DOC
Mr. ROGERS. When would you expect the perimeter security program to be complete?
Mr. HANTMAN. We have—our best judgment at this point in time is that once we do our design work in fiscal year '99 the project itself probably could be completed the subsequent year. We have some $4.6 million as a marker in fiscal year 2000 at this point in time.
Mr. ROGERS. So, they would be finished, and in place, during the year 2000?
Mr. HANTMAN. That would be our sense at this point in time. We would like to move the design process, the construction documents, and the bidding process along. But clearly, basic approvals need to be had. And the approvals, as we discussed earlier, not only of the Court itself, but certainly of oversight committees, and the community, as well.
Mr. ROGERS. Will the appearance of the main chamber in the building change, in the renovation of the building?
Mr. HANTMAN. We would try to avoid any significant changes to the original design, Mr. Chairman.
Mr. ROGERS. But you would modernize the appearance of the interior to some degree?
Page 70 PREV PAGE TOP OF DOC
Mr. HANTMAN. Well, whatever it takes for us to get the electrical, mechanical, telecommunications work in. We would try not to take care of—not to modify any significant design elements from the original design.
Clearly, we would like to very much make this a restoration project. Keep the full design intent intact. It's a very pristine building. And as I indicated earlier, not very much has been done to it.
Mr. ROGERS. Structurally, the building is okay?
Mr. HANTMAN. We have no indication that there are any basic structural problems. Security related issues may have to be addressed in that vein, though.
Mr. ROGERS. Once you get into the project, might the project change to some degree, when you get the wood off the wall, and the plaster uncovered, might you find something that you didn't anticipate?
Mr. HANTMAN. Electrically, mechanically, I don't think that there are going to be any major surprises. I think that the major issue will really be how the Supreme Court is currently using the building, and how that differs from the original intent.
The number of people they're housing, how those people work. I think that will be the biggest impact on what the master plan turns up.
Page 71 PREV PAGE TOP OF DOC
RENOVATIONS TO NORTH AND SOUTH DRIVEWAYS
Mr. ROGERS. Now, switching gears, you are asking $112,000 this year, with a similar amount next year, for renovating the north and south driveways of the Supreme Court property. Why wouldn't it be more appropriate to do that as a part of the perimeter security project, since undoubtedly, the driveways will have to be incorporated into the security of the building?
Mr. HANTMAN. The Marshal has specifically asked us to accelerate work on that, basically because it's a safety hazard.
The bricks, in the current form that they're in right now, become a slipping hazard for trucks and cars going down those ramps. About a third of those bricks have been deteriorating the 60-odd years that the building has been in place.
We need to review that, and take a look at how we can make sure that the safety issues are addressed. Perhaps where you're going with this, Mr. Chairman, clearly is, we don't want to do anything now that will have to be redone in the future.
Mr. ROGERS. Correct.
Mr. HANTMAN. And we fully recognize that. In fact, we're taking a look at what type of surface material is most appropriate. We've been investigating the cast concrete elements, and have not been satisfied so far with the types of samples we're getting back.
Page 72 PREV PAGE TOP OF DOC
We don't think it fits with the historic nature of the building. And we only have some five inches to work with, before we get down to the structural slab. So, the bricks that are currently there have a sitting bed, and they're sitting five inches above the slab.
The drains are there. We're trying to avoid replacing the drains. And the entry ramp also has an elevation that needs to be relating to the street. And the bottom of the ramp needs to relate to the structural slabs down there.
So, we're trying to work within that five inches. And also, get radiant coils in there, so we can, in fact, whether they're electrical of hydronic, melt the snow, melt the ice, and avoid some of that safety problem that we currently have.
We don't think, Mr. Chairman, that we will have to redo what we do here now. And we certainly would take every effort to make sure that that does not happen.
SITE PREPARATIONS FOR CONDUIT PATHWAYS
Mr. ROGERS. That was my concern. And likewise, you're asking $100,000 for site preparation, for conduit, and pathways, related to computer cabling. Why could that not also be made a part of the renovation project?
Mr. HANTMAN. The issue, Mr. Chairman, comes back to, again, the immediate need, and the time frame within which a master plan could be done, could be funded, could be built.
Page 73 PREV PAGE TOP OF DOC
The LAN network that needs to be put in is an immediate need with the Supreme Court. And we would design it in such a way where we would have slack cable, the ability to come on in, and replace wiring which is over 60 years old right now, and cannot support the technology.
So, we think that, clearly, what we're doing right now, some of it may well be temporary in nature, and be relocated. But we're trying to minimize that, and still give the Court the ability over the next several years, to be able to react to the state of the art, and do their jobs most effectively.
REPLACEMENT OF X-RAY MACHINES
Mr. ROGERS. Now, you're proposing to replace two of the four X-ray machines in the building, is that correct?
Mr. HANTMAN. That is correct, Mr. Chairman. Those machines don't have a very long life. They are not state of the art any longer. And we need to replace them, initially. And we also have money down the road, to replace the additional two machines that they have. Because, again, that technology changes so quickly. And the level of security that is necessary in these buildings also has increased.
Mr. ROGERS. That's way down the list, though. It's way down your priority list, isn't it?
Page 74 PREV PAGE TOP OF DOC
Mr. HANTMAN. Right. We have it under new requirements for 1999 as $130,000. That is correct.
Mr. ROGERS. Well, you prioritize your requests. And that's way down your list. It's real low. I was wondering why it was not higher?
Mr. HANTMAN. Well, when we look at what's up above it, Mr. Chairman, design, roof fall protection, for instance, $10,000 to do a design on that. That is an OSHA criteria that we need to meet, in terms of life safety. It's a regulatory type of issue.
When we look at driveways, that was a life safety issue that we just talked about, in terms of trucks sliding down the driveway.
The communication for the LAN system is also very important. It's a question of how you prioritize the needs.
Mr. ROGERS. I wouldn't think there was anything more important than knowing whether or not a package delivered to the Supreme Court had been X-rayed properly.
Mr. HANTMAN. That is a very important issue. It truly is. But, we did just replace other X-ray machines in 1997.
COURTROOM SEATING CAPACITY
Mr. ROGERS. Mr. Dixon.
Page 75 PREV PAGE TOP OF DOC
Mr. DIXON. What is the capacity of the chamber itself? Seating capacity?
Mr. HANTMAN. We certainly can get back to yo