"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 Youngstown Sheet & Tube Co. v. Sawyer/ from which we derive the main title
ofthis article. In the Steel Seizure Case, Jackson asserted that "[w]hile
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 ofthe United States (1994-95); Associate Professor
of Government, Sweet Briar College (1989-present). University of Louisville (B.A., 1978);
University of Oxford (M.A., 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
MERCER LAW REVIEW
668
[Vol. 46
contemplates that practice will integrate the dispersed powers into a
workable government. It enjoins upon its branches separateness but
interdependence, autonomy but reciprocity. "2
I.
JUDICIALINDEPENDENCE
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." The
Constitution directly addresses that grievance in Article III: "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."
More generally, as has often been noted, James Madison proclaimed
in THE FEDERALISTthat the "separate and distinct exercise of the
different powers of government" among the three branches was
"essential to the preservation of liberty. "5 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 encroachments and oppressions of the representative body."7
Hamilton elaborated this concept with a reference to Montesquieu's
SPIRITOF THE LAWS: "'[T]here 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 IrvingR.Kaufman,The Essence of Judicial Independence,
80 COLUM.
L. REV.671 (1980) for an excellentsummaryof the Anglofoundationsof
Americanconceptsofjudicialindependence.
4. U.S.CONST.
art. III, § 1, cl. 2.
5. THEFEDERALIST
No.51, at 321 (JamesMadison)(ClintonRossitered., 1961).
6. Id.
7. Id.
8. Id.
No.78, at 465 (AlexanderHamilton).
at 466 (quotingMontesquieu,SPIRIT
OFLAws,Vol.I, at 181).
FEDERAL JUDGES' APPEARANCES
1995]
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."1o
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. 11
He highlighted the precedent of the first Chief Justice John Jay serving
concurrently as Secretary for Foreign Affairs and Chief Justice for three
months. 12 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. 13 In fact, Washington
even appointed Jay to the diplomatic mission designated to settle the
continuing British-American dispute. 14 In the twentieth century,
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.15
More recently, Chief Justice Earl Warren served as head of the
9. [d.
10. [d. at 470.
11. Robert B. McKay, The Judiciary and Nonjudicial Activities, 35 LAw & CONTEMP.
PROBS. 9 (1970).
12. [d. at 27 (citing F. MONAGHAN, JOHN JAY, DEFENDER OF LmERTY 300, 304 (1935».
13. [d. (citing F. MONAGHAN, JOHN JAY, DEFENDER OF LmERTY 347 (1935».
14. [d. (citing F. MONAGHAN, JOHN JAY, DEFENDER OF LmERTY 367-87 (1935».
15. Note, Extrajudicial Activity of Supreme Court Justices, 22 STAN. L. REv. 587, 592
(1970).
[Vol. 46
MERCER LAW REVIEW
670
commission that now bears his name to investigate the 1963 assassination of President John Kennedy."
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." 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,"
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 Improvements Act of 1990.21
III.
CATEGORIZING
AND LABELLING
JUDICIAL
ACTIVITY
The literature on judges' professional activities beyond the bench uses
a variety oflabels for such phenomenon. "Nonjudicial" or "nonadjudicative" 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.
17.
Justices
18.
Id.
Henry J. Abraham & Bruce A. Murphy, The Influence of Sitting and Retired
on Presidential Supreme Court Nominations, 3 HAsTINGS CONST. L.Q. 37 (1976).
BRUCE A. MURPHY, THE BRANDEIs/FRANKFURTHER CONNECTION: THE SECRET
POLITICAL ACTIVITIES OF Two SUPREME COURT JUSTICES (1982).
19. PETER G. FISH, THE POLITICS OF FEDERAL JUDICIAL ADMINISTRATION(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, Judicial Lobbying and Court Reform: U.S. Magistrate
Judges and the Judicial Improvements Act of 1990, 14 U. ARK. LITI'LE ROCK L.J. 163
(1992).
22. See McKay, supra note 11, at 19-20, and Winkle, supra note 20, at 263-64.
1995]
FEDERAL JUDGES' APPEARANCES
671
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 .... "23
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. "24 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 CONDUCTCanon 4 (1980). See also Larry Lempert, Judicial
Lobbying: Where Should the Line Be Drawn? L.A. DAILYJ., Apr. 12, 1983, at 4.
25. CODE OF JUDICIALCONDUCTCanon 4B (1980).
26. Judicial Conference Adopts Principles for Health Care Reform, THE THIRDBRANCH
(Admin. Office of the U.S. Cts., Wash. D.C.), Aug. 1994, at 1.
.
MERCER LAW REVIEW
672
[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 multifaceted, this Article narrows its scope to official appearances of Article III
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 of judges' 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") Congressional Masterfile (CM) databases.
CM databases are essentially
electronic transcriptions ofthe 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 LexislN exis 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" (Iin wi]) 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 wi]" 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 (Iin wnl) 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 "(AssocJustice, 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 wnl," 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 LexislNexis, 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 alllOS 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
MERCER LAW REVIEW
674
[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."
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. H3ll-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: Hearing Before
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: Hearing Before 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." 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 Appropriations Committee.F
He was followed in that role by Associate Justice
Stanley Reed in 1939.33
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 1961;34in 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 Appropriation Bill, 1926: Hearing Before the House Comm. on
Appropriations, 69th Cong., 1st 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 Establishment Appropriation Bill, House Committee
on Appropriations, 71st Cong., 2d Sess. (1930) (statement of Associate Justice Harlan
Stone). CIS No. H643-3, Legislative Establishment Appropriation Bill 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: Judicial Appropriation for 1947-61, 80th87th 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: Judicial Appropriation
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 Congo House Committee on
Appropriations (1951, 1953, 1955, 1956) (statement of Associate Justice Harold H. Burton).
676
MERCER LAW REVIEW
[Vol. 46
decades." 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." 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 William 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." In 1921 Taft testified before
the House and Senate Judiciary Committees ("HJC" and "SJC") on the
need to increase the number of U.S. district court judges. 39 Three years
36. Appearances by the following Justices for Judicial Appropriations Bills: CI8 Nos.
89 H2229-2, 91 H2412-4, House Committee on Appropriations, 89th and 91st Congo(1966,
1969) (statement of Associate Justice Tom Clark); CI8 Nos. 90 81905, 91 81993-5, 8enate
Committee on Appropriations, 90th & 91st Congo (1968, 1969) (statement of Associate
Justice Tom Clark); CI8 Nos. 90 H2266-2, 90 H2339-0-A, 91 H2412-4, 72-H181-15, 74H181-7, 74-H181-48, 75-H181-20, 76-H181-4, 77-H181-19, House Committee on
Appropriations, 90th-95th Congo(1967-77) (statement of Associate Justice Byron R. White);
CI8 Nos. 90 81836-2, 91 81962-0, 70-8181-41, 72-8181-13, 73-8181-27, 74-8181-15, 748181-39, 90th-93rd Congo(1967, 1968, 1970, 1972-74) (statement ofAssociate Justice Byron
R. White); CI8 Nos. 78-H181-16, 79-H181-12, 80-H181-19, 82-H181-18, 84-H181-37, House
Committee on Appropriations, 95th-98th Congo (1978-80, 1982, 1984) (statement of
Associate Justice Lewis F. Powell); CI8 Nos. 78-8181-49, 79-8181-23,80-8181-14,82-818135,85-8181-20, 8enate Committee on Appropriations, 95th-98th Congress (1978-80, 1982,
1984) (statement of Associate Justice Lewis F. Powell); CI8 Nos. 83-H181-26, 85-H181-31,
86-H181-21, 87-H181-18, 89-H181-56, 90-H181-59, 91-H181-39, 92-H181-48, House
Committee on Appropriations, 98th-102d Congo (1983, 1985-87, 1989-92) (statement of
Associate Justice 8andra Day O'Connor); CI8 Nos. 84-8181-4, 86-8181-16, 87-8181-15, 888181-1,89-8181-29,90-8181-33,91-8181-36,
92-8181-29, House Committee on Appropriations, 98th-102d Congo(1983, 1985-87, 1989-92) (statement ofAssociate Justice 8andra Day
O'Connor).
37. 8tatistical 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 8tarr, William Howard Taft: The Chief Justice as Judicial
Architect, 60 U. CIN. L. REV. 963 (1992).
39. CI8 No. 8180-3, Additional Judges, U.S. District Courts, 8enate Committee on
Judiciary, 67th Cong., 1st 8ess. (1921) (statement of Chief Justice William Howard Taft).
CI8 No. H298-19,Additional
Judges, U.S. District Courts, House Committee on Judiciary,
67th Cong., 1st 8ess. (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." Twice in 1928 he stressed to the HJC the need to create a
Tenth Circuit.f' 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 membership 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 Create a Tenth Judicial Circuit, House Committee on Judiciary,
70th Cong., 1st 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: Jurisdiction of' Circuit Courts of Appeals and
U.S. Supreme Court, Pay of Supreme Court Reporter, House Committee on Judiciary, 67th
Cong., 2d Sess. (1922) (statement of Chief Justice William Howard Taft). CIS No. H367 -3B, Jurisdiction of Circuit Court of Appeals and Supreme Court, House Committee on
Judiciary, 68th Cong., 1st Sess. (1924) (statement of Chief Justice William Howard Taft).
45. [d.
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 ofthe 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."
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," 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 1964.50
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 Ms office.52 In fact, Justice Stewart was the last
47. Appeals from Federal Courts: Hearing on S. 2176 Before the Senate Comm. on the
Judiciary, 74th Cong., 1st Sess. 1-8 (1935) (statement of Charles Evans Hughes, Chief
Justice of the United States Supreme Court).
48. CIS No. 78 HI015-11, To Change the Quorum of the Supreme Court of the U.8.,
House Committee on Judiciary, 78th Cong., 1st Sess. (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 .... " [d. 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 K. Wheeler (Di-Mont.). See text of letter in ELDERWITT,
CONGRESSIONAL
QUARTERLY,
GUIDETOTHESUPREMECOURT963 (2d ed. 1990).
50. CIS No. 88 SI573-11, Federal Pay 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,AdministrativeAssistant
to the Chief Justice, 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. 53
Four such instances involved issues of judicial administration relating
to ethics rules applied to federal employees, the civil service status of exlaw 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 CIRCUIT 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. 56 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, Establishment of 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 To Acquire A Classified Civil-Service Status, House Committee on Post Office
and Civil Service, 82d Cong., 1st Sess. (1951) (statement of Associate Justice Harold H.
Burton). CIS No. 82 H1380-1, Katyn Forest Massacre, 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
Frankfurter). CIS No. 85 H1702-3, Restrictions of Political Activities, 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.
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MERCER LAW REVIEW
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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."
These issues included personnel matters involving salary
increases for federal jurists, additional federal judgeships, and retirement and removal by impeachment of Article III 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-S521-12, Nomination of John Paul
Stevens to be a Justice of the Supreme Court, 94th Cong., 1st Sess. (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 of Nomination 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. 59 Circuit judges also presented their views on
various legislative proposals, such as the Juvenile Delinquency
Prevention Act,60amendments to the Criminal Justice Act of 1990,61
the Citizen's Right to Standing in the Federal Courts Act,62 the
Bankruptcy Antifraud Act,63the Violent Crime Control Act,54and the
Civil Justice Reform Act.65 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,67the 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-H521-43, Habeas Corpus Reform, Senate Committee on the
Judiciary, 101st Cong., 1st and 2d Sess. (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 11th 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 Interpretation and 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 Sess. (1986) (statement of Gerald B. Tjoflat, Judge, U.S. Court
of Appeals for the 11th Cir.),
64. CIS No. 91-H521-2, 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 Crisis in Federal and 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).
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MERCER LAW REVIEW
[Vol. 46
Act,68 and the Independent Counsel Reauthorization Act.69 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."
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." 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."
68. CIS No. 87-S521-50, Industrial Innovation 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-H763-6, 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 Sess. (1906) (statement
of William W. Morrow, Judge, U.S. Court of Appeals for the 9th Cir.).
72. CIS No. 89-S311-64, Political Status of Puerto Rico, 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, General Revenue Revision, 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 Disaster Relief Legislation, Senate Committee on Public Works, 93rd Cong., 1st
Sess. (1973) (statement of Max Rosenn, Judge, U.S. Court of Appeals for the 3rd Cir.).
Cost-Benefit Analysis of Environmental Priorities: CIS No. 93-S311-2, Use of Risk 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 O. 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'
misconduct" and had published an editorial on the same subject."
Judge Newman appeared before the subcommittee to share his expertise
and even offer a proposal for legislation to embody his ideas." 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."
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. 78 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 O. Newman, Suing the Lawbreakers: Proposals to Strengthen the Section 1983
Damage Remedy for Law Bnforcers=Mieconduct, 87 YALEL.J. 447 (1978).
75. Jon O. Newman, How to Protect Other Rodney Kings, N.Y. TIMES,May 1, 1992, at
A2.
76. Federal Response to Police Misconduct: Hearing Before the Subcomm. on Civil and
Constitutional Rights of the House Comm. on the Judiciary, 102d Cong., 2d Sess. 14-63
(1992) (statement of Jon O. 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.
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[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 Conference." 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
casee." Federal district judges have also discussed before congressio-
79. Judicial Salaries: CIS No. 83-S521-1, Federal Judicial Salary Control Act 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 Sess. (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). Federal Judgeships:
CIS No. 91-S1977-2, Federal Judges 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). Reorganization of Districts and Circuits: CIS No. 81-H1239,
Authorizing the Appointment of Additional Circuit and District Judges 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, Independence of Federal Judges, 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 of A Probation and Parole System: CIS No. H298-5, Probation In the
Federal Courts, Parole, House Committee on the Judiciary, 67th Cong., 1st Sess. (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,Administration 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 For Jurors And Witnesses: CIS No. 80 HJ- T.12, Payments
of Fees To Jurors And Witnesses, House Committee on the Judiciary, 80th Cong., 2d Sess.
(1948) (statement of James M. Proctor, Judge, U.S. District Court for the District of D.C.).
Compensation For U.S. Commissioners: CIS No. 79 Hl111-3, U.S. Commissioners, House
1995]
FEDERAL JUDGES' APPEARANCES
685
nal committees proposed legislation such as the Federal Magistrates
Act8! and the U.S. Marshals Service Act.82 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.85 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 Justice Act 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 Sess. (1967).
82. CIS No. 87-S521-33, S.2044, 99th Cong., 2d Sess. (1986).
83. Reorganization of the Supreme Court of the United States: CIS No. 75 S536-0-E,
Reorganization of the Federal Judiciary, 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). Creation of the Federal Judicial 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 Massachusetts; Raszel 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 Discrimination In the Selection of Federal Judges: CIS No. 80-H141-31, Age
Discrimination In the Selection of Federal Judges, 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 S1568-5-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., 1st Sess. (1977)
(statement of William S. Sessions, Judge, U.S. District Court for the Western District of
Texas). Defendent Pretrial Discovery Rights: CIS No. 87-H521-62, Revision of Criminal
Defendent Pretrial Discovery 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." 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."
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, Proposed Amendments 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 Practices And Alternatives In 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-H521-12, 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 Naturalization And Immigration: CIS No. H427-4, Relief of Judges in
Naturalization Cases, House Committee on Immigration and Naturalization, 69th Cong.,
1st Sess. (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
1995]
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. 89 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 in judicial 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, Federal Food, 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). Panama Canal Transition:
CIS No. 82-H561-22, Panama Canal Miscellaneous, House Committee on Merchant Marine
And Fisheries, 97th Cong., 2d Sess. (1982) (statement of Morey L. Sear, Judge, U.S.
District Court for the Eastern District of Louisiana). Public Buildings Accessability For the
Handicapped: CIS No. 84-H641-18, To Establish Certain Public Buildings Policies For the
Federal Government, 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 Sess. (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., 1st Sess.
(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 MacPherson Berrien, With
Testimony Relating To the Violation of the Naturalization Laws, Senate Committee On the
Judiciary, 28th Cong., 2d Sess. (1845) (statement of Archibald 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 ofjudicial administration from
the Department of Justice where it had been lodged since the Department'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
Coult 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.
9!. Third Deficiency Appropriations Bill, 1923: Hearing Before the House Comm. on
Appropriations, 69th Cong., 1st 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 Congo 1st Sess. 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,
lals the Washington-based administrator for the federal judiciary, the Attorney
General and the Department of Justice had contact with, if not direct responsibility 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).
[Vol. 46
MERCER LAW REVIEW
690
Figure I
Instances of Congressional Testimony by Sitting Supreme Court Justices Other
Than Appropriations and Nominations
Year
Committee (House of
Congress)
1909
Agriculture (House)
John Marshall Harlan I
Washington, D.C. higher education aid
under the Morrill Act
DC
1921
Judiciary (House)
William H. Taft·
Increasing the number of federal district
judges
CA
1921
Judiciary (Senate)
William H. Taft·
Increasing the number
judges
CA
1922
Claims (House)
William H. Taft (former member of the
War Labor Board)"
Claims of employees of Bethlehem
Steel
1922
Judiciary (House)
William H. Taft·
Jurisdiction of current courts of appeals
and U.S. Supreme Court and pay of
Supreme Court reporters
1922
Military Affairs
(House)
William H. Taft·
Fort Hale and Lighthouse Point land
transfer to New Haven, CT
M
1922
Judiciary (House)
William H. Taft·
Jurisdiction and judicial code revisions
for the Supreme Court and the courts of
appeals
J
1924
Judiciary (Senate)
Willis Van Devanter
James C. McReynolds
George Sutherland
Juries and procedure of the Supreme
Court
1924
Judiciary (House)
Willis Van Devanter
James C. McReynolds
George Sutherland
William H. Taft·
The powers, jurisdiction, and regulation
of the Supreme Court and the courts of
appeals
1924
Judiciary (House)
William H. Taft·
Additional judgeships for the 8th Circuit
CA
1926
Immigration and
Naturalization
(House)
William H. Taft·
Relief of judges in naturalization cases
CA
1926
Claims (House)
William H. Taft·
War Labor Board award to employees
of Minneapolis Steel and Machinery
Co.
M
1928
Judiciary (House)
William H. Taft·
Willis Van Devanter
Creation of the lOth Judicial Circuit
CA
1928
Public Buildings and
Grounds (House)
William H. Taft·
Willis Van Devanter
The selection and construction of the
Supreme Court Building site
CA
1928
Judiciary (House)
Willis Van Devanter
William H. Taft·
Creation of the 10th Judicial Circuit
CA
1935
Judiciary (Senate)
Charles E. Hughes"
Willis Van Devanter
Louis D. Brandeis
Opposition to Senator Hugo Black's bill
enlarging the Supreme Court's appellate
jurisdiction in cases involving injunctions against federal officials
1941
Judiciary (Senate)
Robert H. Jackson
Impeachment procedure of federal
judges accused of unethical behavior
CA
1943
Judiciary (House)
Harlan F. Stone"
Changing the quorum of the Supreme
Court
CA
1951
Labor and Public
Affairs (Senate)
Robert H. Jackson
Establishment of the Commission on
Ethics in Government
CA
Justice(s)
Subject of Hearing
0f
federal district
Category
M
CAlJ
CP
J
1995]
FEDERAL JUDGES' APPEARANCES
1951 Post Office and Civil
691
Harold H. Burton
Civil service status of ex-law clerks and
ex-secretaries of federal judges
CA
Robert H. Jackson
Soviet execution of Polish military
officers
M
Felix Frankfurter
National Historical Publications Committee
CA
Hugo L. Black
Impact of restrictions on the political
activities of federal employees included
in the Hatch Act
CA
John Marshall Harlan
II(representing the
National Historical
Publications Committee)
Federal grants for the collection of
documentary source material
CA
Earl Warren=
Salary Reform Act
CA
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
CA
1989 Post Office and Civil
William H. Rehnquist*
Pay increases for federal Judges
CA
Service (House)
1952
investigation of the
Katyn Forest Massaere (House: select)
1957 House Administration (House)
1958 House Administration (House)
1963 Government Operations (House)
1964 Post Office and Civil
Service (Senate)
Service (House)
N:
CA:
OP:
I
M:
Nominations
Court administration
Policy that does not directly affect the courts
investigations
Miscellaneous topics
A:
CP:
J :
DC:
*
Appropriations
Policy directly affecting the courts
Jurisdiction
Hearings concerning the District of Columbia
Chief Justice
[Vol. 46
MERCER LAW REVIEW
692
Figure 2
Catagorization of Testimony Before Congress of
Article III Judges From 1789-1993
Justices of the Supreme Court of the
United States
111111~M4
OP 1
DC 1
N2
Judges of the United States District Courts
J6
DC17
MIO
1995]
FEDERAL JUDGES' APPEARANCES
693
Judges of the United States Courts of Appeals
J9
DC II
OP40
II
N 154
AIl United States Article III Judges
119
OP60
M 19
DC 29
117
CiI
N: Nominations
lID
J: Jurisdiction
GJ
A: Appropriations
EI
I: Investigations
of judges
•
CA: Court Administration
~
DC: Hearings concerning the District of Columbia
o
CP: Policy directly affecting the courts
~
M: Miscellaneous
~
OP: Policy that does not directly affect the courts
topics of discussion
[Vol. 46
MERCER LAW REVIEW
694
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
A
1/
o
1\
I
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r-,
o
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Decade of Hearings
Judges of the United States District Courts
60
50
/'"-- f--/
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V
/
/
10
o
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-::>
0
0
0-
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~
c..
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oo
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1995]
FEDERAL JUDGES' APPEARANCES
695
Judges of the United States Court of Appeals
70
60
'"c
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CD
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t>
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z 20
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Decade of Hearings
All United States Article III Judges
120
-:
100
./'
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,/
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20
./
/
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* 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.
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ee