A First Look at Federal Judges' Appearances Before Legislative Committees

Mercer Law Review

Volume 46 Number 2 Federal Judicial Independence Article 5 Symposium

3-1995

"Separateness but Interdependence, Autonomy but Reciprocity": A First Look at Federal Judges' Appearances Before Legislative Committees

Harvey Rishikof

Barbara A. Perry

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Recommended Citation Rishikof, Harvey and Perry, Barbara A. (1995) ""Separateness but Interdependence, Autonomy but Reciprocity": A First Look at Federal Judges' Appearances Before Legislative Committees," Mercer Law Review: Vol. 46 : No. 2 , Article 5. Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol46/iss2/5

This Article is brought to you for free and open access by the Journals at Mercer Law School Digital Commons. It has been accepted for inclusion in Mercer Law Review by an authorized editor of Mercer Law School Digital Commons. For more information, please contact [email protected]. "Separateness but Interdependence, Autonomy but Reciprocity": A First Look at Federal Judges' Appearances Before Legislative Committees

by Harvey Rishikof and Barbara A. Perry"

The Founding Fathers established judicial independence as a central tenet of the Constitution of the United States in order to insulate federal judges from the President, the Congress, and the electorate. Yet because of the complicated nature of the Constitution and overlapping powers, the judiciary has not remained totally isolated from the legislative process. Our research has discovered hundreds of instances of federal jurists testifying before congressional committees on subjects such as court administration, federal jurisdiction, budgetary policy, and pending legislation in a variety of fields. Indeed, our findings buttress a key argument of Justice Robert H. Jackson's concurring opinion in Youngs- town Sheet & Tube Co. v. Sawyer,' from which we derive the main title of this article. In the Steel Seizure Case, Jackson asserted that "[wihile the Constitution diffuses power the better to secure liberty, it also

* Administrative Assistant to the Chief Justice, Supreme Court of the United States. McGill University (B.A., 1975); Brandeis University (M.A., 1978); New York University School of Law (J.D., 1986). ** Judicial Fellow, Supreme Court of the United States (1994-95); Associate Professor of Government, Sweet Briar College (1989-present). University of Louisville (BA, 1978); University of Oxford (MA, 1985); University of Virginia (Ph.D., 1986). The authors would like especially to thank Joe Huynh, Peter Knight, Stephen Griesemer, and Kristine Lucius for their invaluable research assistance and numerous suggestions. 1. 343 U.S. 579 (1952).

667 668 MERCER LAW REVIEW [Vol. 46 contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but 2 interdependence, autonomy but reciprocity."

I. JUDICIAL INDEPENDENCE IN HISTORICAL CONTEXT Despite Justice Jackson's assertion that the separation of constitutional powers would be tempered by inevitable and necessary cooperation among the branches, the historical record is replete with an emphasis on judicial autonomy. The Declaration of Independence railed against the British monarch who "had made judges dependent on his will alone, for the tenure of their offices, and the amount of their salaries."3 The Constitution directly addresses that grievance in Article HI: "The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office."4 More generally, as has often been noted, James Madison proclaimed in THE FEDERALIST that the "separate and distinct exercise of the different powers of government" among the three branches was "essential to the preservation of liberty.' On the subject of the judicial branch, Madison was just as vigorous in defending its independence. He argued that "the permanent tenure by which the appointments are held in that department [the judiciary] must soon destroy all sense of dependence on the authority conferring them.' Similarly, Alexander Hamilton vociferously supported the constitutional arrangement in Article III of the Constitution as an "excellent barrier to the encroach- ments and oppressions of the representative body."7 Hamilton elaborated this concept with a reference to Montesquieu's SPIRIT OF THE LAWS: "'[Tihere is no liberty if the power of judging be not separated from the legislative and executive powers.'" Yet Hamilton worried that because the judiciary would be the weakest branch of government, it would be "in continual jeopardy of being

2. 343 U.S. at 635 (Jackson, J., concurring). 3. Para. 11 (U.S. 1776). See Irving R. Kaufman, The Essence ofJudicial Independence, 80 COLUM. L. REV. 671 (1980) for an excellent summary of the Anglo foundations of American concepts of judicial independence. 4. U.S. CONST. art. Ila, § 1, cl. 2. 5. THE FEDERALIST No. 51, at 321 (James Madison) (Clinton Rossiter ed., 1961). 6. Id. 7. Id. No. 78, at 465 (Alexander Hamilton). 8. Id. at 466 (quoting Montesquieu, SPIRIT OF LAWS, Vol. I, at 181). 19951 FEDERAL JUDGES'APPEARANCES 669 overpowered, awed, or influenced by its co-ordinate branches.' While Hamilton warned against encroachment upon the judiciary by the President and Congress, he was equally concerned that the judicial branch be protected from what he called "the effects of occasional ill humors in the society."-°

II. CROSSING THE BOUNDARIES OF SEPARATION The Framers, therefore, attempted to construct walls around the judiciary to protect it from interventions by the President, Congress, and public opinion. In practice, however, those barriers may resemble the winding serpentine walls designed by Thomas Jefferson for the University of Virginia. The constitutional protections established for the judiciary usually secure it from breaches by the other branches and the electorate, but the boundaries remain flexible enough to allow judges to move beyond them When necessary or desired. Scholars, especially since the 1970s, have noted the willingness of judges to step out of their isolated roles as judges and assume other governmental duties. Professor Robert McKay catalogued what he termed "nonjudicial" activities of Supreme Court Justices and linked his findings to issues of judicial administration and ethical standards.' He highlighted the precedent of the first Chief Justice John Jay serving concurrently as Secretary for Foreign Affairs and Chief Justice for three months.' Moreover, Chief Justice Jay advised President George Washington and Secretary of Treasury Alexander Hamilton on a variety of matters throughout his tenure on the bench.' In fact, Washington even appointed Jay to the diplomatic mission designated to settle the continuing British-American dispute. 14 In the twentieth entury, President Harry Truman named Justice Jackson chief American prosecutor at the Nuremberg war-crimes trials, which necessitated his absence from the work of the Court for nearly a year and a half.' More recently, Chief Justice Earl Warren served as head of the

9. k4 10. Id. at 470. 11. Robert B. McKay, The Judiciary and Nonjudicial Activities, 35 LAW & CONTEMP. PROBS. 9 (1970). 12. 14 at 27 (citing F. MONAGHAN, JOHN JAY, DEFENDER OF LIBERTY 300, 304 (1935)). 13. Id. (citing F. MONAGHAN, JOHN JAY, DEFENDER OF LIBERTY 347 (1935)). 14. Id. (citing F. MONAGHAN, JOHN JAY, DEFENDER OF LIBERTY 367-87 (1935)). 15. Note, ExtrajudicialActivity of Supreme Court Justices, 22 STAN. L. REV. 587, 592 (1970). 670 MERCER LAW REVIEW [Vol. 46

commission that now bears his name to investigate the 1963 assassination of President John Kennedy."6 Scholarly books and articles have also tracked the political activity of Supreme Court Justices. Professors Henry Abraham and Bruce Murphy documented instances of Supreme Court Justices' involvement in presidential nominations to the highest court in the land.17 Murphy then followed up that study with extensive archival research, which he reported in his book on the secret political activities of Justices Louis Brandeis and Felix Frankfurter.8 Previous research has traced the twentieth century phenomenon of judges' involvement in lobbying for causes related to judicial administration. Professor Peter Fish devoted an entire book to the politics of administering the federal judiciary, which focuses on the establishment in 1922 of the Conference of Senior Circuit Judges and its evolution into the Judicial Conference of the United States.' More recent publications have described case studies of particular issues that drew the attention of federal judges and prompted them to lobby Congress. Matters that jurists have addressed ranged from habeas corpus reform in the 1940s20 to the role of magistrate judges and the Judicial Im- provements Act of 1990.21

III. CATEGORIZING AND LABELLING JUDICIAL ACTIVITY The literature on judges' professional activities beyond the bench uses a variety of labels for such phenomenon. "Nonjudicial" or "nonadjudica- tive" are the broadest categories used to denote a focus on judges acting outside the traditional process of deciding cases.' But terms like "extra-judicial" and "quasi-judicial" have also found their way into descriptions of judges' activities. The former label has been applied to judges practicing law, participating in business and charitable activities, engaging in partisan politics or public service or both, and maintaining personal and social relationships. Quasi-judicial has been used to

16. Id. 17. Henry J. Abraham & Bruce A. Murphy, The Influence of Sitting and Retired Justices on PresidentialSupreme Court Nominations,3 HASTINGS CONST. L.Q. 37 (1976). 18. BRUCE A. MURPHY, THE BRANDEISMANKFURTHER CONNECTION: THE SECRET POLITICAL ACTIVrriEs OF TWO SUPREME COURT JUSTICES (1982). 19. PETER G. FISH, THE POLITICS OF FEDERAL JUDICIAL ADMnsTRATION (1973). 20. See John W. Winkle, III, Judges as Lobbyists: Habeas Corpus Reform in the 1940s, 68 JUDICATURE 263 (1985). 21. See Christopher E. Smith, JudicialLobbying and Court Reform: U.S. Magistrate Judges and the Judicial Improvements Act of 1990, 14 U. AR& LITL ROCK L.J. 163 (1992). 22. See McKay, supra note 11, at 19-20, and Winkle, supra note 20, at 263-64. 19951 FEDERAL JUDGES' APPEARANCES include "those activities of judges that are not part of their assigned duties, but are related to the judicial function through efforts to improve judicial administration, to accomplish law reform, or to inform other judges, lawyers, or'the general public about the nature of law .... I The American Bar Association ("ABA") has included appearances by judges under the rubric quasi-judicial in its Code of Judicial Conduct and has approved such activity as long as the judge "does not cast doubt on his capacity to decide impartially any issue that may come before him."' The ABA Code specifies that a judge "may appear at a public hearing before an executive or legislative body or official on matters concerning the law, the legal system, and the administration of justice ,,25 Our Article adopts the ABA's categorization of judicial appearances before executive or legislative bodies as quasi-judicial activity. Thus, we have eliminated from consideration in this study the implications for judicial independence of extra-judicial activities as defined above. Furthermore, we acknowledge that a variety of techniques have been used by federal judges. These include both official and unofficial means of contacting legislators through direct and indirect methods. Official, direct contacts encompass testimony before congressional committees and official letters to individual legislators. Formal reports from the Judicial Conference or its various committees illustrate an official but indirect technique. For example, most recently the Judicial Conference adopted and reported in the summer of 1994 four core principles regarding the creation of judicial remedies that it thought should be included in any health care legislation enacted by Congress.' The Conference's recommendations were as follows: * There should be a full exhaustion of administrative remedies for benefit denial claims. # Following exhaustion of administrative remedies, and consistent with general principles of federalism, state courts should be the primary forum for review of benefit denial claims. * Traditional discrimination claims should be handled differently from benefit denial claims based on issues such as medical necessity.

23. McKay, supra note 11, at 20-26. 24. CODE OF JUDICIAL CoNDuCT Canon 4 (1980). See also Larry Lempert, Judicial Lobbying: Where Should the Line Be Drawn? LA. DAILY J., Apr. 12, 1983, at 4. 25. CODE OF JUDICIAL CoNDuCT Canon 4B (1980). 26. JudicialConference Adopts Principlesfor Health Care Reform, THE THIRD BRANCH (Admin. Office of the U.S. Cts., Wash. D.C.), Aug. 1994, at 1. 672 MERCER LAW REVIEW [Vol. 46

# To ensure the effectiveness of the enforcement provisions of any health care legislation, it is critical that sufficient resources be provided to the responsible administrative and judicial entities.' Speeches and law review articles by judges in which they advocate a point of view on policy are other examples of official but indirect techniques. Unofficial, direct attempts at contacts include private phone calls and meetings between judges and legislators. Recognizing that the topic ofjudicial/legislative relations is multifacet- ed, this Article narrows its scope to official appearances of Article I judges before legislative committees.

IV GATHERING DATA ON JUDGES' TESTIMONY We labelled this study a "first look" at federal judges' testimony before legislative committees because to our knowledge no one has performed a comprehensive data search for incidences ofjudges' appearances before congressional panels. Our method of data gathering was painstaking in its efforts to be as thorough as possible and merits a detailed description. We relied on the Congressional Information Service's ("CIS") Congres- sional Masterfile (CM) databases. CM databases are essentially electronic transcriptions of the major congressional documents, including committee hearings, published by the CIS. The first of the two main CM databases, entitled Congressional Masterfile 1 v2.0 (CM1), is recorded on one CD ROM and covers the years 1789 through 1969. The second of the CM databases, known as Congressional Masterfile 2 v2.1 (CM2), splits its coverage into two CD ROMs, one which covers the years 1970 through 1983 and the other which covers the period 1984 through 1994. Similar to a Lexis/Nexis search, the Congressional Masterfile finds every instance of selected search terms contained in its databases. There are a number of ways for users to refine their searches. Unless otherwise commanded, the database will search all fields (documents, notes, headings, hearings, evidence, etc.). Using field specifications, the user can limit the search to specific parts of the congressional record to refine the search results. Two helpful field specifications are the "witness name" ([in wil) and "in witness" ([in wn]) notations. The "witness name" notation searches only the names of the witnesses who have testified before Congress. For example, the search "Goldberg, Arthur [in wil" will find every instance in the database where "Goldberg, Arthur" testified (Witnesses are noted in the database by their last name first.). The "in witness" notation ([in wn]) searches the words in parentheses that follow the witness's name and usually indicates the

27. Id. 1995] FEDERAL JUDGES' APPEARANCES 673 witness's position and affiliation. A typical witness notation might appear as "Goldberg, Arthur (former Assoc Justice, US Supreme Court; US Ambassador to the UN)." The databases, however, are not without their problems. A major failing is their inconsistent witness notation. One "hit" (or relevant result) may refer to a witness as "(Assoc Justice, Supreme Court)" while another may note a witness as "(Supreme Court)" while yet another may read "(US Supreme Court Assoc Justice)." Consequently, an improperly tailored search may unintentionally miss relevant records. For example, if the user searched "US Supreme Court [in wn]," the results would exclude the other two records. Yet if the search terms were only "Supreme Court [in wn]," the results would encompass both state supreme courts as well as the U.S. Supreme Court and produce an unmanageable number of results. Unlike Lexis/Nexis, approximation searches are not available. The databases search words in the same order as they are written in the search box. Consequently, it was more effective to search individual terms than word groupings in order to ensure more accurate results. Perhaps the most frustrating search limitation is the databases' definition of"US" as a common word. In many cases, the federal courts are preceded by the phrase "US" in witness notation, which is intended to be an abbreviation for United States but is not written "U.S." There is no efficient way to search the word "US" without the databases considering it a common word and producing a massive number of results (most of which refer to state courts). For example, by typing the phrase "US District Court [in wn]" the databases consider the phrase US as a common word "[common word] District Court [in wn]." Hence, the results would include all state district courts. As a result, a comprehensive search strategy is essential to producing accurate results. The first step involves defining search terms broadly enough to encompass any possibly relevant "hit" without producing an unworkable number of documents. To accomplish this task, we first converted relevant parts of the databases to IBM DOS in order to make scanning the documents easier. We skimmed the files noting all the witness notation variations for the U.S. Supreme Court, the U.S. Courts of Appeals, and the U.S. District Courts. As a final check on "hits" for the U.S. Supreme Court, we searched under the names of all 108 justices who have served on the high court. Consequently, the search should have included virtually all of the appropriate testimony by completing a comprehensive, yet still focused, scan of the CM databases. The next step involved printing out the "hits." For this initial study we decided to limit the printout to the headings of relevant committee hearings, which contain, among other useful information, the hearing's 674 MERCER LAW REVIEW [Vol. 46 title, committee name, date of hearing, summary of subjects discussed, and names and titles of witnesses. We first sorted the instances ofjudges' testimony into three categories: appropriations hearings, nomination hearings, and all other subjects. Given that appearances by judges at the first two types of hearings would be expected, we focused most of our analysis on the more interesting and revealing miscellaneous category. We tabulated by year the number of hearings in which Article III judges testified before Congress, and the total number of such jurists who testified each year. In addition, we have analyzed statistical trends and substantive changes in the subject matter of judges' testimony in United States history

V. TRENDS IN SUPREME COURT JUSTICES' TESTIMONY According to our data, Justices of the U.S. Supreme Court have usually appeared before congressional committees to discuss budgetary matters. Only two sitting Justices have testified at nomination hearings-Associate Justice Abe Fortas for his unsuccessful appointment to Chief Justice in 1968 and Associate Justice William Rehnquist for his promotion to Chief Justice in 1986. In 1923 Chief Justice William Howard Taft became the first member of the U.S. Supreme Court to testify before a congressional appropriations committee on the Court's budgetary needs.s He did so again three years later." In that testimony, Chief Justice Taft, for the first time and at the suggestion of the Budget Director, General Lord, separated the funds out of which salaries and wages were to be paid from the funds out of which supplies would be allocated.' The level of supervision by the Appropriations Committee even extended to the purchase of a law library for the federal

28. CIS No. H311-8, Third Deficiency Appropriations Bill, House Committee on Appropriations, 67th Cong., 4th Sess. (1923) (statement of Chief Justice William Howard Taft). In 1921 Taft had testified before the Senate and House Judiciary Committees on the number of district court judges and the need for additional judgeships; the Chief Justice also addressed the proposed legislation concerning the creation of a conference of chief judges of the circuits. Additional Judges, United States District Courts: HearingBefore the Senate Comm. on the Judiciary, 67th Cong., 1st Sess. 11-19 (1921) (statement of William Howard Taft, Chief Justice of the United States); Additional Judges, United States District Courts: Hearing Before the House Comm. on the Judiciary,67th Cong., 1st Sess. 3-5 (1921) (statement of William Howard Taft, Chief Justice of the United States). 29. CIS No. H432-0, Second Deficiency Appropriations Bill, House Committee on Appropriations, 69th Cong., 1st Sess. (1926) (statement of Chief Justice William Howard Taft). 30. Appropriations,Department of Justice, 1927: HearingBefore the House Comm. on Appropriations,69th Cong., 1st Sess. 223-31 (1926) (statement of William Howard Taft, Chief Justice of the United States). 1995] FEDERAL JUDGES' APPEARANCES 675

court building in Boston, a topic addressed in personal appearances before the committee by Associate Justices Oliver Wendell Holmes and Louis D. Brandeis, who accompanied Chief Justice Taft to the hearing.3 1 The pattern of periodic testimony continued until 1943 when it became an annual event. In 1930 and 1933, then Associate Justice Harlan Stone took the Court's budgetary request to the House Appropri- ations Committee.82 He was followed in that role by Associate Justice 3 Stanley Reed in 193 9 .' Since 1943, at least one member of the highest court in the land has appeared before a congressional appropriations committee. Justice Hugo Black, who had served in the U.S. Senate, took on the duty between 1947 and 19 6 1;34 in some years during that period he was replaced or joined by his colleague Associate Justice Harold Burton, who had also been a member of the Senate before coming to the Court.' No Justice since Black has surpassed his record number of seventeen appearances before appropriations committees. Nevertheless, a pattern has emerged whereby junior Justices or those in mid-career serve as the Court's spokesperson before the congressional committees on appropriations. Justices Tom Clark, Byron White, Lewis Powell, and Sandra Day O'Connor acted in that capacity most frequently over the past two

31. Second Deficiency AppropriationBill, 1926: HearingBefore the House Comm. on Appropriations, 69th Cong., lst Sess. 765-67 (statement of William Howard Taft, Chief Justice United States Supreme Court; Oliver Wendell Holmes, Associate Justice United States Supreme Court; Louis D. Brandeis, Associate Justice United States Supreme Court). See FISH, supra note 19, at 80. 32. CIS No. H548-2, Legislative EstablishmentAppropriation Bill, House Committee on Appropriations, 71st Cong., 2d Sess. (1930) (statement of Associate Justice Harlan Stone). CIS No. H643-3, Legislative Establishment AppropriationBill for 1934, House Committee on Appropriations, 72d Cong., 2d Sess. (1933) (statement of Associate Justice Harlan Stone). 33. CIS No. H855-2, Department of Justice Appropriation Bill for 1940, House Committee on Appropriations, 76th Cong., 1st Sess. (1939) (statement of Associate Justice Stanley Reed). 34. CIS Nos. 80 H1137-0-C, 80 H1182-2, 81 H1236-2, 81 H1286-2, 81 H1324-2, 82 H1353-1-E, 83 H1447-2, 84 H1529-1-C, 85 H1596-2-C, 85 H1658-1-D, 86 H1721-0-A, 86 H1782-0-A, 87 H1860-0-B, Titles of Hearings: JudicialAppropriation for 1947-61, 80th- 87th Cong., House Committee on Appropriations (1947-61) (statement of Associate Justice Hugo Black). CIS Nos. 81 S943-0-A, 82 S991-2, Titles of Hearings: JudicialAppropriation for 1951-52, 81st-82nd Cong., Senate Committee on Appropriations (1950-51) (statement of Associate Justice Hugo Black). 35. CIS Nos. 82 H1324-2, 83 H1407-2, 84 H1483-2, 84 H1554-1-B, Titles: Judicial Appropriations for 1951, 1953, 1955, 1956, 82nd-84th Cong. House Committee on Appropriations (1951,1953,1955,1956) (statement of Associate Justice Harold H. Burton). 676 MERCER LAW REVIEW [Vol. 46

decades.se Because Justices usually appear annually before both the House and Senate Appropriations Committees, the total number of hearings at which Justices testified on budget matters is 91 out of a total 120 committee meetings at which Justices appeared on any subject.37 Appropriations Committee appearances account for 76% of the total appearances of Justices before Congress. In areas beyond nominations and appropriations, Supreme Court Justices have testified at 27 congressional hearings, over half of which have focused on matters related to judicial administration. (See Figures 1 and 2.) Not surprisingly, Chief Justice Villiam Howard Taft, whose special concern during his tenure on the Court was administering the federal judiciary, was the most willing participant in congressional hearings on the subject. Between 1921 and 1928, he appeared thirteen times before congressional committees.s In 1921 Taft testified before the House and Senate Judiciary Committees (WHJC" and "SJC")on the need to increase the number of U.S. district court judges." Three years

36. Appearances by the following Justices for Judicial Appropriations Bills: CIS Nos. 89 H2229-2,91 H24124, House Committee on Appropriations, 89th and 91st Cong. (1966, 1969) (statement of Associate Justice Tom Clark); CIS Nos. 90 S1905, 91 81993-5, Senate Committee on Appropriations, 90th & 91st Cong. (1968, 1969) (statement of Associate Justice Tom Clark); CIS Nos. 90 H2266-2, 90 H2339-0-A, 91 H24124, 72-11181-15, 74- H181-7, 74-H118148, 75-H181-20, 76-H181-4, 77-11181-19, House Committee on Appropriations, 90th-95th Cong. (1967-77) (statement of Associate Justice Byron R. White); CIS Nos. 90 $1836-2, 91 S1962-0, 70-818141, 72-8181-13, 73-8181-27, 74-8181-15, 74- S181-39,90th-93rd Cong. (1967,1968,1970,1972-74) (statement ofAssociate Justice Byron R. White); CIS Nos. 78-11181-16,79-H181-12, 80-H181-19,82-H181-18, 84-H181-37, House Committee on Appropriations, 95th-98th Cong. (1978-80, 1982, 1984) (statement of Associate Justice Lewis F. Powell); CIS Nos. 78-8181-49,79-181-23, 80-8181-14,82-$181- 35, 85-S181-20, Senate Committee on Appropriations, 95th-98th Congress (1978-80, 1982, 1984) (statement of Associate Justice LewisF. Powell); CIS Nos. 83-11181-26,85-11181-31, 86-11181-21, 87-11181-18, 89-H181-56, 90-H181-59, 91-11181-39, 92-H181-48, House Committee on Appropriations, 98th-102d Cong. (1983, 1985-87, 1989-92) (statement of Associate Justice Sandra Day O'Connor); CIS Nos. 84-8181-4,86-8181-16,87-8181-15,88. 5181-1,89-8181-29,90-$181-33,91-181-36,92-181-29, House Committee on Appropria- tions, 98th-102d Cong. (1983,1985-87,1989-92) (statement ofAssociate Justice Sandra Day O'Connor). 37. Statistical analysis is based on information gathered in the data search described in Part IV of this article. 38. The figure of 13 appearances excludes Taft's 1923 testimony before the House Appropriations Committee. For a detailed analysis of Taft's emphasis on judicial administration, see Kenneth Starr, William Howard 'Taft: The Chief Justice as Judicial Architect, 60 U. CIN. L. REv. 963 (1992). 39. CIS No. $180-3, Additional Judges, U.S. District Courts, Senate Committee on Judiciary, 67th Cong., 1st Seas. (1921) (statement of Chief Justice William Howard Taft). CIS No. H298-19, Additional Judges, U.S. DistrictCourts, House Committee on Judiciary, 67th Cong., 1st Sess. (1921) (statement of Chief Justice William Howard Taft). See supra 1995] FEDERAL JUDGES' APPEARANCES 677

later the Chief Justice was before the HJC requesting additional judgeships for the Eighth Circuit.' In 1926 Taft appeared at a hearing of the House Committee on Immigration and Naturalization to advocate the appointment of examiners to lighten the load of the district courts.41 Twice in 1928 he stressed to the HJC the need to create a Tenth Circuit.' That same year Taft argued in front of the House Committee on Public Buildings and Grounds for the necessity of constructing a Supreme Court building.' Taft also testified three times, twice in 1922 and once in 1924, before the HJC on jurisdictional issues." Each time, he stressed the desirability of altering the jurisdiction of the circuit courts and the Supreme Court.' Taft's successor in the center chair, Chief Justice Charles Evans Hughes, chose two colleagues (Justices Willis Van Devanter and Louis Brandeis) as a special committee of the Court to represent its member- ship and accompany him to a 1935 hearing of the SJC to voice opposition to Senator Hugo Black's proposed bill that would have enlarged the Supreme Court's appellate jurisdiction in cases involving injunctions against federal officials." The chairman of the SJC had sent a copy of Black's bill to Hughes and had invited him to testify before the committee at his convenience. Chief Justice Hughes accepted the invitation and argued before the Judiciary Committee that the proposed legislation was unnecessary because the Supreme Court already had "the power to bring before it by certiorari any case of the sort described in the

note 28. 40. CIS No. H354-2, Additional Judges for the Eighth Circuit, House Committee on Judiciary, 68th Cong., 1st Sess. (1924) (statement of William Howard Taft). 41. CIS No. H427-4, Relief of Judges in Naturalization Cases, House Committee on Judiciary, 69th Cong., 1st Sess. (1926) (statement of Chief Justice William Howard Taft). 42. CIS No. H520-4, To Createa Tenth JudicialCircuit, House Committee on Judiciary, 70th Cong., lt and 2d Sess. (1928) (statement of Chief Justice William Howard Taft). 43. CIS No. H505-4, Public Buildings and Grounds, House Committee on Public Buildings and Grounds, 70th Cong., 1st Sess. (1928) (statement of Chief Justice William Howard Taft). 44. CIS Nos. H322-14-A, 67 HJ-1, Titles: Jurisdictionof Circuit Courts ofAppeals and U.S. Supreme Cour4 Pay of Supreme Court Reporter,House Committee on Judiciary, 67th Cong., 2d Sess. (1922) (statement of Chief Justice William Howard Taft). CIS No. H367-3- B, Jurisdiction of Circuit Court of Appeals and Supreme Court, House Committee on Judiciary, 68th Cong., lt Ses. (1924) (statement of Chief Justice William Howard Taft). 45. Id. 46. According to Peter Fish, Hughes did not follow his predecessor's pattern of "congressional maneuvering' but sought to influence Congress indirectly by enhancing the prestige of the Judicial Conference and by calling on the Attorney General to perform the legwork on Capitol Hill. See Fish, supra note 19, at 82. 678 MERCER LAW REVIEW [Vol. 46 bill in advance of decision by the circuit court of appeals" under the 1891 act that had established the federal circuit courts.47 The next Chief Justice, Harlan Stone, who was promoted from his associate position on the Court by Franklin Roosevelt in 1941, appeared before the HJC in 1943 to discuss whether the Supreme Court's quorum rule should be changed.' The rule of six, established when the Court's members numbered ten, was not revised when Congress reduced the number of justices to nine in 1869. Although it was widely reported by the press in 1989 that Chief Justice William Rehnquist was the first sitting Chief Justice since Hughes to testify before Congress,49 the record reveals that Chief Justice Earl Warren had appeared before the Senate's Post Office and Civil Service Committee to speak on the Salary Reform Act in 19 64 .s' Like Warren, Rehnquist went before the Post Office and Civil Service Committee (on the House side) to appeal for a salary increase for federal judges."' Interestingly, Rehnquist's immediate predecessor, Chief Justice Warren Burger, who was especially devoted to judicial administration, did not appear before Congress while he occupied the center chair. Even the issue of creating an Office of the Administrative Assistant ("AA") to the Chief Justice, which was high on Burger's agenda, did not draw him across the street to testify. Instead, he sent Associate Justice Potter Stewart before the HJC in 1971 to support the creation of an AA's office.' 2 In fact, Justice Stewart was the last

47. Appeals from FederalCourts: Hearingon S. 2176 Before the Senate Comm. on the Judiciary, 74th Cong., 1st Ss. 1-8 (1935) (statement of Charles Evans Hughes, Chief Justice of the United States Supreme Court). 48. CIS No. 78 H1015-11, To Change the Quorum of the Supreme Court of the U.S., House Committee on Judiciary, 78th Cong., 1st Seas. (1943) (statement of Chief Justice Harlan Stone). 49. Judith Havemen, Rehnquist Urges Raise for Judges, WASH. POST, May 4, 1989, at A4. In addition to overlooking Warren's testimony before Congress in 1964, Havemen also incorrectly wrote that "Chief Justice Charles E. Hughes [had) testified against President Franklin D. Roosevelt's 'court packing' bill in 1935.... ." Id. Hughes did not testify before Congress on FDR's proposal to enlarge the Court (which was introduced in 1937, not 1935), but the Chief Justice did write a letter opposing the plan to one of the Senate's most influential members, Burton I. Wheeler (D.-Mont.). See text of letter in ELDER Wrrr, CONGRESSIONAL QUARTERLY, GuIDE TO THE SUPREME COURT 963 (2d ed. 1990). 50. CIS No. 88 S1573-11, FederalPay Legislation, Senate Committee on Post Office and Civil Service, 88th Cong., 1st Sess. (1964) (statement of Chief Justice Earl Warren). 51. CIS No. 89-H621-37, Recommendations of the National Commission on Public Service, House Committee on Post Office and Civil Service, 101st Cong., 1st Sess. (1989) (statement of Chief Justice William Rehnquist). 52. CIS No. 71-H521-4,Administrative Assistant to the ChiefJustice, House Committee on Judiciary, 92d Cong., 1st Sess. (1971) (statement of Associate Justice Potter Stewart). 1995] FEDERAL JUDGES"APPEARANCES 679

Associate Justice to appear before a congressional committee other than for an appropriation or nomination hearing. The decade of the 1950s witnessed the most appearances by Associate Justices before legislative panels. (See Figure 3.) On five occasions, Justices Robert Jackson, Harold Burton, Felix Frankfurter, and Hugo Black individually went before committees besides appropriations.' Four such instances involved issues of judicial administration relating to ethics rules applied to federal employees, the civil service status of ex- law clerks and ex-secretaries of federal judges, and the preservation of historical publications." Justice Jackson also testified in a congressional investigation of the Katyn Forest Massacre (where Soviets executed Polish military officers), probably owing to the expertise Jackson had gained as the United States prosecutor at the Nuremberg trials.'

VI. TRENDS IN Cmcurr AND DISTRICT COURT JUDGES' TESTIMONY Because we discovered nearly 500 hearings where U.S. Courts of Appeals judges testified before Congress, our analysis of the data, for reasons of space, will necessarily be more statistical than for the relatively few cases of the Supreme Court Justices' congressional testimony. Over one-third of the hearings at which courts of appeals judges testified were for nominations." These included appellate judges nominated for the U.S. Supreme Court and who testified at their own hearings, as well as the more frequent occasions when appellate

53. CIS No. 82 S992-3, Establishmentof a Commission on Ethics in Government, Senate Committee on Labor and Public Welfare, ,82d Cong., 1st Sess. (1951) (statement of Associate Justice Robert Jackson). CIS No. 82 HPoc-T.8, To Permit Secretarties, Law Clerks, and Secretary-Law Clerks to Federal Judges Separated from the Service Involuntarily ToAcquire A ClassifiedCivil-Service Status, House Committee on Post Office and Civil Service, 82d Cong., 1st Ses. (1951) (statement of Associate Justice Harold H. Burton). CIS No. 82 H1380-1, Katyn ForestMassacre, House Select Committee to Conduct an Investigation of the Facts, Evidence, and Circumstances of the Katyn Forest Massacre, 82d Cong., 2d Sess. (1952) (statement of Associate Justice Robert Jackson). CIS No. 85 HHad-1, National Historical Publications Commission, House Committee on House Administration, 85th Cong., 1st Sess. (1957) (statement of Associate Justice Felix Frankfirter). CIS No. 85 H1702-3, Restrictionsof PoliticalActivities, House Committee on House Administration, 85th Cong., 2d Sess. (1958) (statement of Associate Justice Hugo Black). 54. Id 55. Id. 56. This figure is based on a comparision of all instances of testimony by courts of appeals judges with testimony regarding nominations. This figure was calculated after all of the data relevant to nomination hearings had been collected from the Congressional Information Service (CIS) Congressional Masterfiles. See explanation of data gathering in Part IV of this article. 680 MERCER LAW REVIEW [Vol. 46 judges appeared in support of friends and colleagues nominated to federal offices.57 A little over one tenth of the hearings at which courts of appeals judges testified were before appropriations committees. Excluding appropriation and nomination appearances, federal courts of appeals judges testified before nearly 300 legislative hearings in Congress. We have categorized appearances at these hearings according to general topics. (See Figure 2.) The most numerous subjects addressed by courts of appeals judges before congressional committees are those related to court administration (labelled CA) and policies with direct impact on the courts (labelled CP). Out of 275 known instances of nonappropriation and non-nomination hearings at which federal circuit judges testified, 125 of the hearings addressed issues of court administration.s' These issues included personnel matters involving salary increases for federal jurists, additional federal judgeships, and retirement and removal by impeachment of Article HI judges. Other subjects in the realm of judicial administration touched on the structure of the federal judiciary, for example, circuit realignment, creation of a National Court of Appeals, and the need for additional courthouses. Circuit judges also appeared before hearings to discuss support services, governance, and policy making for the federal judiciary, which included creation of the Administrative Office of the U.S. Courts in 1939, the role of the Judicial Conference, composition of Judicial Councils, and application of the Sunshine Act to the Conference and the Councils. The circuit jurists also provided congressional committees with information about revision of the bankruptcy courts and improvements in the pretrial service agencies. Ironically, court of appeals judges even appeared before a committee considering the nonjudicial activities of federal judges. Federal courts of appeals judges have also testified at 84 congressional hearings where the subject was a policy that would likely have a direct, substantive impact on the courts. Most notable in this category were hearings considering reforms in criminal law and the judicial process. An illustrative list of topics addressed by circuit court judges reads like

57. For an example of the former, see CIS. No. 76-$521-12, Nomination of John Paul Stevens to be a Justice of the Supreme Court, 94th Cong., 1st Sees. (1975) (statement of John P. Stevens, Judge, U.S. Court of Appeals for the 7th cir.); for an illustration of the latter, see CIS. No. 82 SJ-T.17, On Confirmation ofNomination of Herman E. Moore, 82d Cong., 2d Sess. (1952) (statement of John Biggs, Jr., Judge, U.S. Court of Appeals for the 3rd Cir.). 58. Statistics are based on information gathered in the data search described in Part IV of this Article. 1995] FEDERAL JUDGES' APPEARANCES 681

a litany of major issues in constitutional law that have found their way into the political arena: representation of indigent defendants, habeas corpus appeals, exclusionary rule modification, and judges' use of legislative history." Circuit judges also presented their views on various legislative proposals, such as the Juvenile Delinquency Prevention Act,' amendments to the Criminal Justice Act of 1990,1 the Citizen's Right to Standing in the Federal Courts Act,' the Bankruptcy Antifraud Act,6 the Violent Crime Control Act," and the Civil Justice Reform Act." Hearings on the substance and procedure of sentencing also attracted judicial participation. In addition, courts of appeals judges testified about the mass tort problems surrounding the asbestos litigation crisis.' At 40 congressional hearings, federal circuit judges addressed policies that were not directly related to the courts or their administration (labelled OP for Other Policy). Judges often appeared before committees to discuss proposed legislation in this diverse category, including the Interstate Commerce Act, 7 the Industrial Innovation and Technology

59. Indigent Defendents: CIS No. 86 H1792-3, Representation of Indigents in Judicial Proceedings, House Committee on the District of Columbia, 86th Cong., 1st Sess. (1959) (statement of Barrett E. Prettyman, Judge, U.S. Court of Appeals for the DC cir.). Habeas Corpus Reform: CIS No. 91-1521-43, Habeas Corpus Reform, Senate Committee on the Judiciary, 101st Cong., 1st and 2d Seas. (1990) (statements of Donald P. Lay, Judge, U.S. Court of Appeals for the 8th Cir.; William J. Holloway, Judge, U.S. Court of Appeals for the 10th Cir.; Charles Clark, Judge, U.S. Court of Appeals for the 5th Cir.; Paul H. Roney, Judge, U.S. Court of Appeals for the U1th Cir.; and Patrick E. Higginbotham, Judge, U.S. Court of Appeals for the 10th Cir.). Exclusionary Rule: CIS No. 82-S521-65, Exclusionary Rules Bill, Senate Committee on the Judiciary, 97th Cong., 2d Sess. (1982) (statement of Malcolm R. Wilkey, Judge, U.S. Court of Appeals for the D.C. Cir.). Legislative History: CIS No. 91-H521-19, Statutory Interpretationand the Uses of Legislative History, House Committee on the Judiciary, 101st Cong., 1st Sess. (1990) (statements of Patricia M. Wald, Judge, U.S. Court of Appeals for the D.C. Cir.; James L. Buckley, Judge, U.S. Court of Appeals for the D.C. Cir.; Stephen G. Breyer, Judge, U.S. Court of Appeals for the 1st Cir.). 60. 42 U.S.C. § 3801 et seq. (1988). 61. 18 U.S.C. § 3006A (1988). 62. CIS No. 79-S521-37, S.3005, 95th Cong., 2d Sess. (1978). 63. CIS No. 87-S521-37, Bankruptcy Antifraud Act of 1986, Senate Committee on the Judiciary, 99th Cong., 2d Seas. (1986) (statement of Gerald B. Tjoflat, Judge, U.S. Court of Appeals for the l1th Cir.). 64. CIS No. 91-1521-2, H.R. 2709, 101st Cong., 2d Sess. (1990). 65. 28 U.S.C. § 471 et. seq. (Supp. IV 1991). 66. CIS No. 93-H521-48, Asbestos Litigation Crisisin Federaland State Courts, House Committee on the Judiciary, 102d Cong., 2d Sess. (1992) (statement of Thomas M. Reavley, Judge, U.S. Court of Appeals for the 5th Cir.). 67. 49 U.S.C. § 1 et seq. (1887). 682 MERCER LAW REVIEW [Vol. 46

Act," and the Independent Counsel Reauthorization Act.' Judges also testified about general farm legislation and trade issues. In 1936, for example, Judge William Denman of the United States Court of Appeals for the Ninth Circuit appeared before the House Merchant Marine and Fisheries Committee to discuss the establishment of sardine trade regulations.7 Occasionally, judges have appeared as representatives of a particular community. For instance, another jurist from the Ninth Circuit appeared to request relief for San Francisco after the 1906 earthquake.71 Judge Juan Torruella of the United States Court of Appeals for the First Circuit went before a 1990 House Interior and Insular Affairs Committee to discuss the political status of Puerto Rico.72 His Puerto Rican heritage and experience of serving on the U.S. District Court for Puerto Rico made him a likely witness. Circuit court judges also tackled subjects as varied as selective compulsory military service, tax rate revision, food additives, federal disaster relief, and cost benefit analysis in setting environmental priorities."3

68. CIS No. 87-S521-50, IndustrialInnovation and Technology Act, Senate Committee on the Judiciary, 100th Cong., 1st Sess. (1987) (statement of Giles S. Rich, Judge, U.S. Court of Appeals for the D.C. Cir.). 69. CIS No. 93-S401-1, S.3131, 102d Cong., 2d Ses. (1992). 70. CIS No. 74-11763-6, Sardine Fisheries,House Committee on Merchant Marine and Fisheries and Senate Committee on Commerce, 74th Cong., 2d Sess. (1936) (statement of William Denman, Judge, U.S. Court of Appeals for the 9th Cir.). 71. CIS No. HAp 59-R, Hearing Concerning Proposed Relief of San Francisco, California,House Committee on Appropriations, 59th Cong., 1st Sees. (1906) (statement of William W. Morrow, Judge, U.S. Court of Appeals for the 9th Cir.). 72. CIS No. 89-S311-64, PoliticalStatus of PuertoRico, Senate Committee on Energy and Natural Resources, 101st Cong., 2d Sess. (1989) (statement of Juan R. Torruella, Judge, U.S. Court of Appeals for the 1st Cir.). 73. Selective Compulsory Miltiary Service: CIS No. 76 S629-15, Compulsory Military Training and Service, Senate Committee on Military Affairs, 76th Cong., 3rd Sess. (1940) (statement of William Clark, Judge, U.S. Court of Appeals for the 3rd Cir.). Tax Rate Revision: CIS No. 83 H1427-3-A, GeneralRevenueRevision, House Committee on Ways and Means, 83rd Cong., 1st Sess. 1 (1953) (statement of Herbert F. Goodrich, Judge, U.S. Court of Appeals for the 3rd Cir.). Food Additives: CIS No. 85 H-1666-7, Food Additives, House Committee on Interstate and Foreign Commerce, 85th Cong., 1st and 2d Sess. (1958) (statement of John Biggs, Jr., Judge, U.S. Court of Appeals for the 3rd Cir.). Federal Disaster Relief: CIS No. 73-S641-21, To Investigate the Adequacy and Effectiveness of Federal DisasterRelief Legislation, Senate Committee on Public Works, 93rd Cong., Ist Sess. (1973) (statement of Max Rosenn, Judge, U.S. Court of Appeals for the 3rd Cir.). Cost-Benefit Analysis of EnvironmentalPriorities: CIS No. 93-S311-2, Use ofRisk Analysis and Cost-Benefit Analysis In Setting Environmental Priorities,Senate Committee on Energy and Natural Resources, 103rd Cong., 1st Sess. (1993) (statement of Stephen G. Breyer, Judge, U.S. Court of Appeals for the 1st Cir.). 1995] FEDERAL JUDGES' APPEARANCES 683

This Other Policy (OP) category covers such a wide range of topics that no pattern of judicial testimony emerges from them. Appearances by judges on these issues seems purely ad hoc. Perhaps in some instances judges have a particular expertise or interest in a subject and are therefore asked to appear. In the wake of the 1991 Rodney King beating by Los Angeles police officers, for example, the House Judiciary Committee's Subcommittee on Civil and Constitutional Rights invited Judge Jon 0. Newman of the United States Court of Appeals for the Second Circuit to testify. He had written a law review article in 1978 on strengthening the Section 1983 damage remedy for law enforcers' misconduct74 and had published an editorial on the same subject.75 Judge Newman appeared before the subcommittee to share his expertise and even offer a proposal for legislation to embody his ideas.7" In other circumstances, such as testifying to appeal for disaster relief,judges use their respected positions to represent their communities. In historical context, the first instance of a circuit court judge testifying before Congress dates to 1906 and the request for relief of San Francisco after the earthquake.77 In counting by decades, we discovered a steady increase from the 1930s to the present in the number of courts of appeals judges who testified before committees on matters not related to appropriations or nominations. (See Figure 3.) Interestingly, U.S. district court judges have appeared at over 100 fewer congressional hearings than their colleagues on the federal circuit benches. Over one quarter of these hearings concerned nominations; another one seventh addressed appropriations.7" Excluding these two categories, federal district court judges appeared before 231 congressional committees. As was the case for circuit judges, district court jurists testified most frequently on topics related to court administration and substantive policies affecting the federal courts. Just over 160 hearings considered subjects from the CA and CP categories and were almost evenly divided between the two. (See Figure 2.)

74. Jon 0. Newman, Suing the Lawbreakers: Proposalsto Strengthen the Section 1983 Damage Remedy for Law Enforcers' Misconduct, 87 YALE L.J. 447 (1978). 75. Jon 0. Newman, How to Protect Other Rodney Kings, N.Y. TIMEs, May 1, 1992, at A2. 76. Federal Response to Police Misconduct: HearingBefore the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 102d Cong., 2d Seas. 14-63 (1992) (statement ofJon 0. Newman, Judge, United States Court of Appeals for the Second Circuit). 77. CIS No. HAp 59-R, supra note 71. 78. Statistics are based on information gathered in the data search described in Part IV of this article. 684 MERCER LAW REVIEW [Vol. 46

Many of the judicial administration topics paralleled those on which the circuit judges testified. Judges from both these levels of the federal judicial system sometimes appeared before the same committees to express similar concerns about judicial salaries, retirement benefits, the number of federal judgeships, reconfiguration of districts or circuits, construction of court buildings, and the role of the Judicial Confer- ence.79 In addition, district judges have testified on administrative issues related to the primary functions of the judicial process at the trial level, namely, establishment of a probation and parole system, appointment and tenure of bankruptcy referees, payment of fees to jurors and witnesses, compensation for U.S. Commissioners, improvements in bilingual court proceedings, and attorney compensation rates in criminal cases.s Federal district judges have also discussed before congressio-

79. JudicialSalaries: CIS No. 83-8521-1, FederalJudicial Salary ControlAct of 1981, Senate Committee on the Judiciary, 97th Cong., 2d Sess. (1982) (statement of Elmo B. Hunter, Judge, U.S. District Court for the Western District of Missouri). Retirement Benefits: CIS No. 89-H521-36, Bankruptcy Judges/Magistrates Retirement, House Committee on the Judiciary, 100th Cong., 1st Seas. (1987) (statements of Robert R. Merhige, Jr., Judge, U.S. District Court for the Eastern District of Virginia, and Morey L. Sear, Judge, U.S. District Court for the Eastern District of Louisiana). FederalJudgeships: CIS No. 91-S1977-2, FederalJudges and Courts, Senate Committee on the Judiciary, 91st Cong., 1st Sess. (1969) (statement of William H. Becker, Judge, U.S. District Court for the Western District of Missouri). Reorganizationof Districtsand Circuits:CIS No. 81-111239, Authorizing the Appointment of AdditionalCircuit and DistrictJudges For the U.S. Courts, House Committee on the Judiciary, 81st. Cong., 1st Sess. (1949) (statements of Murray Hulbert, Judge, U.S. District Court for the Southern District of New York; Guy L. Fake, Judge, U.S. District Court for the District of New Jersey, William H. Kirkpatrick, Judge, U.S. District Court for the Eastern District of Pennsylvania; and Louis E. Goodman, Judge, U.S. District Court for the Northern District of California). Construction of Court Buildings: CIS No. 80-H1138-3, Authorizing Plans For Courthouse For the U.S. Court of Appeals, DC., House Committee on Public Works, 80th Cong., 1st Sess. (1947) (statement of Bolitha J. Laws, Judge, U.S. District Court for the District of D.C.). Role of the Judicial Conference: CIS No: 71-S521-16, Independenceof FederalJudges, Senate Committee on the Judiciary, 91st Cong., 2d Sess. (1971) (statements of Walter E. Craig, Judge, U.S. District Court for the District of Arizona; Pierson M. Hall, Judge, U.S. District Court for the Southern District of California; and Stephen S. Chandler, Judge, U.S. District Court for the Western District of Oklahoma). 80. Establishment ofA Probationand ParoleSystem: CIS No. H298-5, ProbationIn the Federal Courts, Parole, House Committee on the Judiciary, 67th Cong., 1st Seas. (1921) (statement of Edwin L. Garvin, Judge, U.S. District Court for the Eastern District of New York). Appointment and Tenure of Bankruptcy Referees: CIS No. 77-H917-2, Administra- tion of the Bankruptcy Act, Referees In Bankruptcy, House Committee on the Judiciary, 77th Cong., 1st Sess. (1941) (statement of Carroll C. Hincks, Judge, U.S. Court of Appeals for the 2d Cir.). Payment of Fees ForJurors And Witnesses: CIS No. 80 HJ-T.12, Payments of Fees To JurorsAnd Witnesses, House Committee on the Judiciary, 80th Cong., 2d Sees. (1948) (statement of James M. Proctor, Judge, U.S. District Court for the District of D.C.). CompensationFor U.S. Commissioners:CIS No. 79 H1111-3, U.S. Commissioners, House 19951 FEDERAL JUDGES' APPEARANCES 685 nal committees proposed legislation such as the Federal Magistrates Act8' and the U.S. Marshals Service Act.' They testified on President Franklin Roosevelt's Supreme Court reorganization scheme in 1937 and the creation of the Federal Judicial Center thirty years later." From a personal perspective, a senior district court judge, Sarah T. Hughes, who first gained notoriety when she swore in President Lyndon Johnson after John Kennedy's assassination in 1963, testified on age discrimination in the selection of federal judges." Topics in the CP category (substantive policies that have a direct impact on the courts) also overlap between circuit and district judges' testimony. Additional, CP subjects commented on by district judges before congressional committees included the following criminal justice issues: modifications in the rules governing pleas, grand jury reform, revision of criminal defendant pretrial discovery rights, voir dire examination, and the Speedy Trial Act." Sentencing was an ever-

Committee on the Judiciary, 79th Cong., 2d Sess. (1946) (statement of Carroll C. Hincks, Judge, U.S. Court of Appeals for the 2d Cir.). Bilingual Courts: CIS No. 74-H521-43, Bilingual Courts Act, Senate Committee on the Judiciary, 93rd Cong., 1st and 2d Sess. (1974) (statement of Manuel Real, Judge, U.S. District Court for the Central District of California; and Jose V. Toledo, Judge, U.S. District Court for the District of Puerto Rico). Attorney Compensation:CIS No. 86-H521-33, Criminal JusticeAct Revision of 1985, House Committee on the Judiciary, 99th Cong., 1st Sess. (1985) (statement of Spencer M. Williams, Judge, U.S. District Court for the Northern District of California). 81. CIS No. 89-S1815-4, 89 S.3475 & 90 S.945, 90th Cong., 1st Sees. (1967). 82. CIS No. 87-S521-33, S.2044, 99th Cong., 2d Ses. (1986). 83. Reorganization of the Supreme Court of the United States: CIS No. 75 $536-0-E, Reorganizationof the FederalJudiciary, Senate Committee on the Judiciary, 75th Cong., 1st Sess (1937) (statement of John C. Knox, Judge, U.S. District Court for the Southern District of New York). Creationof the FederalJudicial Center: CIS No. 90 S1960-3, Crisis In the Federal Courts, Senate Committee on the Judiciary, 90th Cong., 1st Sess. (1967) (statements of Frank J. Murray, Judge, U.S. District Court for the District of Massachu- setts; Roszel C. Thomsen, Judge, U.S. District Court for the District of Maryland; Edward Weinfeld, Judge, U.S. District Court for the Southern District of New York; and Albert C. Wollenberg, U.S. District Court for the Northern District of California). 84. Age DiscriminationIn the Selection of Federal Judges: CIS No. 80-H141-31, Age DiscriminationIn the Selection of FederalJudges, House Select Committee on Aging, 96th Cong., 2d Sess. (1980) (statement of Sara T. Hughes, Judge, U.S. District Court for the Northern District of Texas). 85. Pleas: CIS No. 88 81568-5-A, Mallory and Durham Rules, Senate Committee on District of Columbia, 88th Cong., 1st Sess. (1963) (statement of Alexander Holtzhoff, Judge, U.S. District Court for District of Columbia). Grand Jury Reform: CIS No. 78-H521-13, Grand Jury Reform, House Committee On the Judiciary, 95th Cong., lst Sess. (1977) (statement of William S. Sessions, Judge, U.S. District Court for the Western District of Texas). Defendent PretrialDiscovery Rights: CIS No. 87-H521-62, Revision of Criminal Defendent PretrialDiscovery Rights, Senate Committee On the Judiciary, 98th Cong., 1st Sess. (1985) (statement of Harvey E. Schlesinger, Judge, U.S.District Court for the Middle 686 MERCER LAW REVIEW [Vol. 46 present topic before congressional committees, with district judges testifying on appropriate penalties for drug violators.s In the civil justice realm, district judges testified on arbitration of civil cases in their courts, and like their counterparts on the circuit courts, they commented before committees on multidistrict litigation."7 Federal trial judges also testified on policies not necessarily related to courts directly (the OP category). At 19 different hearings, district judges commented on issues as varied as the creation of a Bureau of Naturalization and Immigration, investigations into "rackets," the Justice Department's handling of white collar crime, control of the use of pesticides, the Panama Canal transition period, public buildings' accessibility for the handicapped, oversight of child welfare programs, and the establishment of flag protections."

District of Florida). Voir Dire Examination: CIS No. 88-S521-20, Voir Dire, Senate Committee on the Judiciary, 100th Cong., 1st Sess. (1987) (statements of Thomas A. Wiseman, Jr., Judge, U.S. District Court for the Northern District of Tennessee; and William T. Hodges, Judge, U.S. District Court for the Middle District of Florida). Speedy Trial Act: CIS No. 81;H521-3, ProposedAmendments To the Speedy Trial Act of 1974, House Committee on the Judiciary, 96th Cong., 1st Sess. (1979) (statement of John Feikens, Judge, U.S. District Court for the Eastern District of Michigan). 86. CIS No. 81-H961-8, Sentencing PracticesAnd Alternatives ln Narcotics Cases, House Select Committee on Narcotics Abuse and Control, 97th Cong., 1st Sess. (1981) (statement of William L. Hungate, Judge, U.S. District Court for the Eastern District of Michigan). 87. Arbitration: CIS No. 94-H521o12, Court Arbitration Authorization Act of 1993, House Committee on the Judiciary, 103rd Cong., 1st Sess. (1993) (statements of William W Schwarzer, Judge, U.S. District Court for the Northern District of California; Ann C. Williams, Judge, U.S. District Court for the Northern District of Illinois; and Jerome B. Simandle, Judge, U.S. District Court for the District of New Jersey). Multidistrict Litigation: CIS No. 89 S1785-6, Mutlidistrict Litigation, Senate Committee on the Judiciary, 89th Cong., 2d Sess. (1966) (statements of William H. Becker, Judge, U.S. District Court for the Western District of Missouri; William J. Campbell, Judge, U.S. District Court for the. Northern District of Illinois; and Edwin A. Robson, Judge, U.S. District Court for the Northern District of Illinois). 88. Bureau of NaturalizationAnd Immigration: CIS No. H427-4, Relief of Judges in Naturalization Cases, House Committee on Immigration and Naturalization, 69th Cong., lst Sees. (1926) (statements of Augustus N. Hand, Judge, U.S. District Court for the Southern District of New York; and E. J. Henning, Judge, U.S. District Court for the Southern District of California). Investigation of -Rackets: CIS No. S429-0, Investigation of So-called 'Rackets,' Senate Committee on Commerce, 73rd Cong., 2d Sess. (1933) (statements of Philip Forman, Judge, U.S. District Court for the District of New Jersey; Grover M. Moscowitz, Judge, U.S. District Court for the Eastern District of New York; and Edwin Garvin, Judge, U.S. District Court for the Eastern District of New York). White Collar Crime: CIS No. 83 H1413-1, Investigation of the Department of Justice, House Committee on the Judiciary, 83rd Cong., 1st Sess. (1953) (statements of Louis E. Goodman, Judge, U.S. District Court for the Northern District of California; Edward P. Murphy, Judge, U.S. District Court for the Middle District of Pennsylvania; and Michael J. Roche, Judge, U.S. District Court for the Northern District of California). Pesticide Control: CIS 19951 FEDERAL JUDGES' APPEARANCES 687

Although district court judges have not been as active as circuit court judges in appearing before congressional committees, the subjects on which they have testified have been just as diverse. The first recorded testimony of a federal district court judge before a congressional panel, the Senate Judiciary Committee, occurred in 1845; however, routine appearances did not begin until the early twentieth century." From that point, however, judicial appearances before legislative committees escalated steadily. (See Figure 3.)

VII. CONCLUSION Further investigation beyond this initial examination of the historical record may offer detailed correlations between historical factors and the remarkable increases injudicial testimony before Congress among circuit and district judges in the twentieth century. For now, we can conclude that such testimony by federal judges is marked by "ad hocism," tends to address pressing issues of the day, often draws upon judges' particular expertise, and frequently attempts to lend jurists' prestige to legislative debates on complex policies. In addition, our research indicates that the creation of the Conference of Senior Circuit Judges in 1922 contributed to the process by which invitations would be issued to the Chief Justice of the United States to testify on subjects that would be explored by the Appropriations

No. 83 H1415-1, FederalFood, Drug,And Cosmetic Act (Pesticides),House Committee On Interstate And Foreign Commerce, 83rd Cong., 1st Sess. (1953) (statement of James W. Morris, Judge, U.S. District Court for the District of Maryland). PanamaCanal Transition: CIS No. 82-H561-22, PanamaCanal Miscellaneous, House Committee on Merchant Marine And Fisheries, 97th Cong., 2d Sees. (1982) (statement of Morey L. Sear, Judge, U.S. District Court for the Eastern District of Louisiana). PublicBuildings Accessability Forthe Handicapped:CIS No. 84-H641-18, To Establish CertainPublic Buildings PoliciesFor the FederalGovernment, House Committee On Public Works And Transportation, 98th Cong., 1st Sess. (1983) (statement of John F. Nangle, Judge, U.S. District Court for the Eastern District of Michigan). Child Welfare: CIS No. 87-H781-24, Child Support Enforcement Program,House Committee On Ways And Means, 100th Cong., 2d Sees. (1988) (statement of William G. Jones, Judge, U.S. District Court for the Western District of North Carolina). Flag Protections: CIS No. 90-S521-6, Hearings On Measures To Protect the Physical Integrity of the American Flag, Senate Committee On the Judiciary, 101st Cong., let Sees. (1989) (statement of Louis H. Pollack, Judge, U.S. District Court for the Eastern District of Pennsylvania). 89. CIS No. SJ 28-A, Reports Made By the Honorable John MacPhersonBerrien, With Testimony Relating To the Violation of the NaturalizationLaws, Senate Committee On the Judiciary, 28th Cong., 2d Sess. (1845) (statement ofArchibald Randall, Judge, U.S. District Court for the Eastern District of Pennsylvania). To observe the routine nature of such appearances beginning in the second decade of the twentieth century, see Figure 3. 688 MERCER LAW REVIEW [Vol. 46

Committees ° In testimony before the committee in 1923, a year after the creation of the Conference, the Chief Justice not only requested $300,000 for additional district courts but also reinforced his request for $6,000 for a bust and portrait of former Chief Justice Edward D. White.91 By 1926, the testimony before the appropriations hearings became much more detailed, including Taft's discussion of the salary of the Reporter at the Supreme Court.' The next watershed that marked testimony by Supreme Court Justices in the appropriations realm concerned the creation in 1939 of the Administrative Office of the U.S. Courts, which resulted in the separation of judicial administration from the Department of Justice where it had been lodged since the Depart- ment's founding in 1870.93 Finally, we must note the demonstrable mixing between the judicial and legislative branches. In fact, Mortin Grodzins's classic "marble cake" description of the blurring of lines among the levels of govern-

90. As Kenneth Starr has noted, ... Supreme Court tradition had long prohibited the head of the United States Judiciary, the Chief Justice, from taking his cause directly to Congress and actively campaigning for reform. That tradition, however, stood in the way of the Couft fulfilling its constitutional mission. It was therefore, as far as Taft was concerned, a tradition to be discarded. See Starr, supra note 38, at 965-66. 91. Third Deficiency AppropriationsBill, 1923: Hearing Before the House Comm. on Appropriations, 69th Cong., lot Sess. 394-96 (1923) (statement of William Howard Taft, Chief Justice Supreme Court of the United States). 92. Appropriations,Department of Justice, 1927: Hearing Before the House Comm. on Appropriations, 69th Cong. 1st Seas. 224-27 (1926) (statement of William Howard Taft, Chief Justice United States Supreme Court). Other issues related to the judicial branch that were discussed at this appropriations hearing included salaries of the district, circuit, and retired judges; the national park commissioners (because they were appointed by the federal trial judges in whose district the park was located); territorial courts; and salaries, fees, and expenses of federal marshals and their deputies. 93. According to Peter Fish, [as the Washington-based administrator for the federal judiciary, the Attorney General and the Department of Justice had contact with, if not direct responsibili- ty for, these officials of the court [i.e., marshals, clerks, probation officers, and bankruptcy referees). From the department's Division of Supplies came files, furniture, sheet forms, dockets, and calendars not only for the marshals and attorneys but also for the judges and clerks. The Division of Accounts in the Office of the General Agent audited claims, accounts, and vouchers of all court personnel from the judges to the messengers. It prepared and reviewed authorizations for expenditures from funds allocated to the Attorney General. Preparation of the budget estimates fell to this division as did the compilation of statistical data on the volume of judicial business and the expenditure of the appropriations by the Department of Justice and the courts. See FISH, supra note 19, at 92-95. 1995] FEDERAL JUDGES' APPEARANCES 689 ments in the federal structure is undoubtedly appropriate to this discussion of the separation of powers among the branches of government. Our research has illustrated that from time to time judges and legislators have engaged in a discussion on issues not contemplated by the Founders. Undoubtedly, this dialogue will continue, but the paradox of maintaining "separateness but interdependence, autonomy but reciprocity" must, by the very nature of the process, remain part of our constitutional framework.

94. Morton Grodzins, Centralization and Decentraliation in the American Federal System, in A NATION OF STATES 3-4 (Robert A. Goldwin ed., 1963). 690 MERCER LAW REVIEW [Vol. 46

Figure 1 Instances of Congressional Testimony by Sitting Supreme Court Justices Other Than Appropriations and Nominations

Year Committee (House of Justice(s) Subject of Hearing Category Congress) Agriculture (House) John Marshall Harlan I Washington, D.C. higher education aid under the Morrill Act Judiciary (House) William H. Taft* Increasing the number of federal district judges Judiciary (Senate) William H. Taft* Increasing the number of federal district judges Claims (House) William H. Taft (for- Claims of employees of Bethlehem mer member of the Steel War Labor Board)* 1922 Judiciary (House) William H. Taft* Jurisdiction of current courts of appeals and U.S. Supreme Court and pay of Supreme Court reporters 1922 Militarj Affairs William H. Taft* Fort Hale and Lighthouse Point land (House) transfer to New Haven, CT 1922 Judiciary (House) William H. Taft* Jurisdiction and judicial code revisions for the Supreme Court and the courts of appeals 1924 Judiciary (Senate) Willis Van Devanter Juries and procedure of the Supreme James C. McReynolds Court George Sutherland 1924 Judiciary (House) Willis Van Devanter The powers, jurisdiction, and regulation James C. McReynolds of the Supreme Court and the courts of George Sutherland appeals William H. Taft* 1924 Judiciary (House) William H. Taft* Additional judgeships for the 8th Cir- cuit 1926 Immigration and William H. Taft* Relief of judges in naturalization cases Naturalization (House) 1926 Claims (House) William H. Taft* War Labor Board award to employees of Minneapolis Steel and Machinery Co. 1928 Judiciary (House) William H. Taft* Creation of the 10th Judicial Circuit Willis Van Devanter 1928 Public Buildings and William H. Taft* The selection and construction of the Grounds (House) Willis Van Devanter Supreme Court Building site 1928 Judiciary (House) Willis Van Devanter Creation of the 10th Judicial Circuit William H. Taft* 1935 Judiciary (Senate) Charles E. Hughes* Opposition to Senator Hugo Black's bill Willis Van Devanter enlarging the Supreme Court's appellate Louis D. Brandeis jurisdiction in cases involving injunctions against federal officials 1941 Judiciary (Senate) Robert H. Jackson Impeachment procedure of federal judges accused of unethical behavior 1943 Judiciary (House) Harlan F. Stone* Changing the quorum of the Supreme Court 1951 Labor and Public Robert H. Jackson Establishment of the Commission on Affairs (Senate) Ethics in Government 19951 FEDERAL JUDGES' APPEARANCES

1951 Post Office and Civil Harold H. Burton Civil service status of ex-law clerks and Service (House) ex-secretaries of federal judges 1952 Investigation of the Robert H. Jackson Soviet execution of Polish military Katyn Forest Massa- officers cre (House: select) 1957 House Administra- Felix Frankfurter National Historical Publications Com- tion (House) mittee 1958 House Administra- Hugo L. Black Impact of restrictions on the political tion (House) activities of federal employees included in the Hatch Act 1963 Government Opera- John Marshall Harlan Federal grants for the collection of tions (House) II (representing the documentary source material National Historical Publications Commit- tee) 1964 Post Office and Civil Earl Warren* Salary Reform Act Service (Senate) 1971 Judiciary (House) Potter Stewart Creation of the Administrative Assistant to the Chief Justice; also allowing federal judges to head the Federal Judicial Center or the Administrative Office of the U.S. Courts without losing seniority 1989 Post Office and Civil William H. Rehnquist* Pay increases for federal Judges Service (House)

Nominations A : Appropriations Court administration CP: Policy directly affecting the courts Policy that does not directly affect the courts J : Jurisdiction Investigations DC: Hearings concerning the District of Columbia Miscellaneous topics * : Chief Justice 692 MERCER LAW REVIEW [Vol. 46

Figure 2 Catagorization of Testimony Before Congress of Article III Judges From 1789-1993

Justices of the Supreme Court of the United States

M4 OP 1 DC 1 N2

Judges of the United States District Courts

DC 17 M 10

OP 19 1995] FEDERAL JUDGES' APPEARANCES 693

Judges of the United States Courts of Appeals J9

OP 40

N 154

All United States Article III Judges

OP 60

M 19 DC 29

A 227

N: Nominations (a 1: Jurisdiction o A: Appropriations E I:Ivestigations ofjudges * CA: Court Administration E2 DC: Hearings conceming the District ofColunbia o CP Policy directly affecting the courts E] M: Miscellaneous topics of discussion [ OP: Policy that does not directly affect the courts 694 MERCER LAW REVIEW [Vol. 46

Figure 3 Number of Hearings Concerning Topics other than Appropriations and Nominations on Which Article III Judges Testified

Justices of the Supreme Court of The United States 20-

15"

4i0A

Judges of the United States District Courts

Decade of Hearings 1995] FEDERAL JUDGES' APPEARANCES 695

Judges of the United States Court of Appeals 70-

600

50-- -

I 40--

30----

20"

Decade of Hearings

All United States Article III Judges

Decade of Hearings

Because Figure 3 charts the number of hearings per decade, data from 1990

through 1994 is omitted from these graphs but is discussed in the text.