STATE, THE

DEPARTMENTS OF COMMERCE, JUSTICE, AND JUDICIARY, AND RELATED AGENCIES APPROPRIATIONS FOR FISCAL YEAR 2003

TUESDAY, MARCH 5, 2002

U.S. SENATE,

SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS,

Washington, DC.

The subcommittee met at 10:01 a.m., in room SD-138, Dirksen Senate Office Building, Hon. Ernest F. Hollings (chairman) presiding.

Present: Senators Hollings, Reed, Gregg, and Domenici.

THE JUDICIARY

SUPREME COURT OF THE UNITED STATES

STATEMENT OF HON. ANTHONY M. KENNEDY, ASSOCIATE JUSTICE
ACCOMPANIED BY:

HON. CLARENCE THOMAS, ASSOCIATE JUSTICE

SALLY RIDER, ADMINISTRATIVE ASSISTANT TO THE CHIEF JUSTICE

WILLIAM SUTER, CLERK OF THE COURT

PAMELA TALKIN, MARSHAL

ALAN HANTMAN, ARCHITECT OF THE CAPITOL

TONY DONNELLY, DIRECTOR OF BUDGET AND PERSONNEL

OPENING REMARKS

Senator HOLLINGS. Good morning. The subcommittee will come to order. We have the pleasure of welcoming Justice Kennedy and Justice Thomas at our hearing this morning relative to the Supreme Court and its budget. We welcome you both.

Senator Gregg, do you have a comment?

Senator GREGG. It is a pleasure to be here and have the Honorable Justices join us again. I notice there must have been a coup d'etat, because the last 3 or 4 years, Justice Souter was here. He appears to have been replaced.

Justice KENNEDY. We have got him busy, Senator.

Senator HOLLINGS. Very good. We recognize you both at this time and you can present your testimony before the committee. The full statement will be included in the record and you can present it or summarize it as you wish.

Justice KENNEDY. Good morning, Mr. Chairman and members of the committee. Justice Thomas and I bring you greetings from our

colleagues. Thank you very much for having this hearing. I will just summarize my opening remarks, Mr. Chairman.

We have with us today a number of our Court personnel and I will just proceed down the row so that you can identify them: Paul AcAdoo, who is with our Marshals Office; General William Suter, who is the Clerk of the Court, and who I might say runs the best clerk's office of any court in the country; the Marshal of our Court, Pamela Talkin; Tony Donnelly, who is our Budget and Personnel Officer, and who is well known to your staff. He has been working in very close cooperation with them and we appreciate that. Sally Rider, the Administrative Assistant to the Chief Justice is right behind me. We also have, of course, Alan Hantman, the Architect of the Capitol.

Now, I know, Mr. Chairman, that waiting in the wings, we have Judge Heyburn and Ralph Mecham of the Administrative Office and our budget is just about 2 percent of the Courts' total budget, so I recognize that order of priority.

But it is a pleasure to appear here, Mr. Chairman. You know, when we talk to judges from abroad in Africa and Russia and Asia and even in Europe, they talk about this process. They are fascinated with how we have established judicial independence. We tell them, as I say in our opening statement, that the tradition has been, but, of course, it is your constitutional responsibility and your constitutional right to determine the level of funding. The tradition has been you give some deference to us if you are satisfied we have approached our task in the right way and that we have been prudent and careful in analyzing the figures.

SUPREME COURT BUDGET

Now, the budget request, because of the vagaries of the budgeting cycle for our major request, which is the building, is actually less than last year, and I would be very happy if we could make that the headline. As we all recognize, however, we are asking for an operational increase. We are asking for an increase of $6,288,000 on a base of $40,036,000. That is a 16 percent increase. Two-thirds of that increase is for adjustments to the existing base. The staff did question, and I raised the same question, whether we should have put pay increase for our police in the adjustment base, but our budget officer assured us that was the proper thing to do. I might point out that we have lost some of our very best policemen to the air marshals. They are being paid so highly that we find it difficult to keep some of our very best people, but we are filling those positions.

The increased part of our operations and expenses budget, quite apart from the building, is $2,268,000 and that breaks up really, Mr. Chairman, into two parts. One, we are asking for 14 positions. I think four of those can be described as relating to the workload of the Court. We need an extra telephone operator, we need a case analyst in the clerk's office, and we need two librarians.

Our workload is increasing. If you look at page 1.11 of the budget request submission, you will see that we are pushing toward 9,000 cases a year, and I think we will soon be at 10,000. This means that we must support and sustain and update our computer function. We are computer dependent. We are electronic dependent in

our Court. We are asking, then, for five positions for training and upgrading and maintaining and improving our computer skills. As of this point, we can barely keep up with what we have, but we want to go to the next level of learning because the committees of the Congress have always requested us to do that.

We have five websites. We are heavily dependent on electronic information for much of the administrative work of the Court. Just last year, the Clerk of the Court realized how much time was spent in corresponding with State bar associations about attorney admissions and attorney qualifications. That usually took at least two or three letters each way for each attorney. They devised an electronic system, and I think 38 States are already on this; and it has just been marvelous.

We, during the disruptions of September and October, were very concerned that case filings were in the mail and that they be protected. The post office protects the filing by the postal date. But we were concerned that we would just be way behind because we were not receiving the petition. It would be 2 months before it would come through the mail.

So our Clerk, I think very creatively, got hold of the 30 or 40 biggest printers in the country, found out who had been printing petitions for certiorari and then contacted all the attorneys by e-mail and said, send us your filing by e-mail. By doing that, he was able to pick up 400 cases that otherwise would have been stalled for a couple of months. We think we have cured that gap, but that just shows you how we are dependent on information technology.

The Clerk of the Court prepared for us a list of the hits on our website for just December of last year and that December was roughly a normal operating month. We received over 1,200,000 hits on the computer and we had close to 150,000 net site sessions, where the person asks questions and gets answers and stays with it for a while. That is why we think this request is prudent; and we think it is urgent.

The other positions, Mr. Chairman, are for our offsite facility. That should be up and running in April. That is where we are doing our mail screening. That is where we moved some of the hazardous functions that are now in the Court and should not be there for the maintenance of the Court, the woodshop, et cetera, and we need those positions for that offsite facility.

BUILDING MODERNIZATION

Ordinarily, Mr. Chairman, as you know, it is the prerogative of the Architect of the Capitol to present the portion of our budget which pertains to buildings and grounds, but since there is such a substantial appropriation there, let me just quickly review that history.

As you will both remember, we testified in my earlier tenure on this committee that we were expecting a major request for building improvement, and we said it could be as high as $20 million. The architects then found that all of the systems in the building had to be replaced. We had not known that. When we first heard figures, we heard them in the area of $170 million and we were simply shocked and notified your staff immediately. We were concerned that we had given testimony it would be $20 million and all

of a sudden we are hearing $170 million, so we did three or four things.

We met with the Architect of the Capitol and made it clear that this was not to be an elaborate, precise, historical reconstruction, where you match the original paint and take a great deal of time with that. We are respectful of the building, the building will look beautiful, but it is not a precise historical reconstruction, and that is a substantial cost savings.

Second, the Architect told us that it was normal in a project of this size to have a peer review where other architects and other estimators, other engineers from the outside come and ask the necessary questions to make sure that the budgeting has been done in the appropriate way. We did that and we hired our own architect to make sure we were asking the right questions. The result was a project cost of slightly over $122 million. Over half of it has been appropriated. We are asking in this budget for the remaining appropriation of $49 million plus.

Mr. Chairman, we were very careful to ask whether there would be a cost saving if we moved out of the building and the answer was definitely not. The plan is to more or less work around us. They propose to come into each chambers only once, so each Justice is only disrupted one time. The construction, if authorized by the Congress and if the bidding process goes as anticipated, should begin in 2003 and we will have to live with our jackhammers and yours, which are across the street, until 2009, but we are prepared to do that. We think it is absolutely necessary for the building.

We are even concerned with this timeline. We are in danger of a major systems failure and the electric system at any time, and the same with the air conditioning, but they are patching it together, finding parts for something that was manufactured a long time ago. We are the only major building on Capitol Hill that has not been renovated since it was built. It is 65 years old. In a way, I think we are maybe the victims of our own thrift because we have let it go for that long.

But we think it is absolutely necessary and we very much appreciate the meetings we have had with you and your staff to explain this figure, to explain the necessity for the project, and we very much appreciate your recognizing the importance of preserving the symbolism and the real operational value of the Court.

PREPARED STATEMENTS

In closing, let me say that when we do go to these foreign countries, I am and Justice Thomas is, all of us in the judiciary and I am sure you in the Congress are immensely proud of the judiciary of the United States and we most appreciate your concern in examining our specific request this morning. Thank you. Senator HOLLINGS. Very good.

[The statements follow:]

PREPARED STATEMENT OF JUSTICE ANTHONY M. KENNEDY

Mr. Chairman and Members of the Committee, Justice Thomas and I appreciate this opportunity to appear before your Committee to address the budget requirements and requests of the Supreme Court for the fiscal year 2003. We bring you greetings from the Chief Justice and from all of our colleagues at the Court.