But first, sources tell Fix the Court that two House appropriators, Reps. Mike Quigley and Steve Womack, met with two justices and their staffs at the Supreme Court privately in late March, though sources dispute which side, the House or the justices, called for the meeting to be private.
Fix the Court believes the justices should testify on their budget in public.
The bill gives the judiciary the power to scrub from the Internet certain “personally identifiable information,” or PII, about federal judges. That includes categories like the name of an employer of an immediate family member, which would make doing accountability work far more difficult. And it creates an enhanced spy service for the federal courts to do the scrubbing work.
When New Jersey passed a PII law in 2020, it included just two categories: home addresses and personal phone numbers. The congressional proposal as it’s currently written has 14.
Rep. Norma Torres asked Director Mauskopf about a training registration form that the Washington Post learned was pulled after 34 of the first 40 respondents reported, in response to one of the form’s questions, that they had “witnessed wrongful conduct in the workplace.”
Mauskopf confirmed the Post’s reporting and noted that all 34 “yeses” were followed up with by the Office of Judicial Integrity, which, according to her, now has two employees after three and a half years of zero or one employee.
Mauskopf did not say if any of the 34 reported instances took place in the judiciary or if comprehensive climate surveys of judiciary staff were planned.
But she did state this often-repeated (Judge Robison said much the same to a House Judiciary panel in March), highly questionable nugget: “In fact, [judiciary employees] have protections that go beyond the statutory protections against discrimination, harassment, sexual abuse, sexual harassment.”
Even though the judiciary has improved its workplace conduct policies since the Judge Kozinski harassment came to light in 2017, and even though last month a panel of judges sitting in the Fourth Circuit held, for the first time, that judiciary employees have Fifth Amendment equal protection and due process rights, a statute that includes judiciary employees under the Title VII protections against harassment, discrimination and retaliation would be far superior than the current state of affairs.
The bipartisan, bicameral congressional proposal on this, the Judiciary Accountability Act, has Fix the Court’s support.
Director Mauskopf said she believes the judiciary’s court records and case management system (CM/ECF and PACER) are “outdated and require replacement.” But she did not mention that the AO now seems to prefer an approach to fixing the system that would take an estimated nine years and cost hundreds of millions of dollars to carry out (see p. 42, “[O]ne area where 18F and the AO disagree substantially is on the question of whether to build new using custom development that leverages open source software or to pursue a COTS-centric approach.”).
“COTS,” or “custom off the shelf,” stands in contrast to the iterative approach envisioned in the bipartisan Open Courts Act, which would see a division of GSA help with the rollout of new CM/ECF and PACER features every few weeks or months and at a far lower cost. After two to three years under that regime, the entire system would be the optimal new one that everyone, including the judiciary, is hoping for. Fix the Court supports this approach.
Unexpectedly, we’ll end on a positive note, and it’ll be on broadcast. Here, Director Mauskopf told the subcommittee that all 13 U.S. Courts of Appeals were livestreaming their oral arguments during the pandemic and are largely continuing to do so (we have proof). She added, “I believe that many of the circuits are discussing keeping those practices post-pandemic.”
In fact, it’s better than “many.” Following a request from Reps. Quigley and Gerry Connolly, Mauskopf surveyed all 13 circuits in February and found that “all but one appellate court have indicated that they would consider continuing to livestream oral arguments after the pandemic abates or have already decided to do so.”
Based on FTC’s sources, it appears that the Eleventh Circuit is the likely outlier.