Article III en banc: the judicial conference as an advisory Intercircuit Court of Appeals.

• Author: Scott, Jacob

Many judges and commentators have advocated for an Intercircuit Court of Appeals to resolve circuit splits. In recent years, the Judicial Conference of the United States has publicly endorsed one circuit's interpretation of the law over another's, as an Intercircuit Court of Appeals might, but without binding effect. This Comment calls for a reevaluation of the Judicial Conference's role in the federal judicial system. It concludes that although Conference support of legislation codifying one circuit's view over another's may enhance the efficiency and consistency of the legal system, such activity is inconsistent with judicial precepts of independence, impartiality, and nonpartisanship, and should therefore be avoided.

1. THE ORIGINS OF THE JUDICIAL CONFERENCE AS AN ADVISORY BODY

   In 1922, Congress created the Conference of Senior Circuit Judges, a modest bureaucracy that would later evolve into the principal policymaking body of the federal judiciary. The organizing statute obliged the Chief Justice to summon the "senior circuit judge of each judicial circuit" to an annual meeting. (1) It also required each member of the Conference to identify the needs of his circuit and to advise the Chief Justice "as to any matters in respect of which the administration of justice in the courts of the United States may be improved." (2) The statute formalized intercircuit communication and administrative integration of the federal appellate courts, but it suggested neither that the Conference should approach Congress with requests or advice, nor that the Conference should avoid the legislature. (3) In fact, Congress is not mentioned in the 1922 Act.

   Contemporary records reveal a newly corporate judiciary cautiously exploring its authority to speak on legislative matters. While Chief Justice Taft regarded discretionary legislative recommendations as part of the judiciary's inherent powers and understood the Conference as a natural mouthpiece for those recommendations, (4) Chief Justice Hughes feared that organized legislative campaigns by the third branch would jeopardize judicial independence. (5) Hughes's Judicial Conference, anxious that uninvited comment on pending legislation or proposals for new legislation would antagonize Congress, began asking directly for an invitation. For four consecutive years beginning in 1930, the Conference sought the authority to recommend "such changes in statutory law affecting the jurisdiction, practice, evidence, and procedure of ... the different district courts and circuit courts of appeals as may to the conference seem desirable." (6)

   Such authority was not formally granted until 2948, when Congress gave the newly renamed Judicial Conference of the United States explicit authority to "submit to Congress ... its recommendations for legislation." (7) In the years since, members of Congress have frequently requested that the Conference express its views on pending legislation, (8) and Congress has given substantial weight to the Conference's views, (9) even to the exclusion of other lobbyists' voices. (10)

2. THE NEED FOR DIALOGUE BETWEEN CONGRESS AND THE COURTS

   In the 1980s and 1990s, legal scholars and jurists expressed concern that ambiguous statutory language presented an increasing burden on the federal courts, often leading to interpretive disagreements among the courts of appeals. (11) These scholars and jurists considered creating a National Court of Appeals that would resolve intercircuit conflicts and promote uniformity in federal law. (12) Responding to the perceived crisis, the Governance Institute, a Washington, D.C.-based think tank, initiated a formal program to increase communication between the courts and Congress. (13) Under this program, opinions in which judges highlighted ambiguous, poorly drafted, or otherwise unclear statutes were forwarded to Congress to make it aware of the need for gap-filling and clarification. Chief Justice Rehnquist praised the project, stating that it would make "it easier for judges to alert legislators to statutory drafting problems identified in the course of adjudication." (14)

   Though the Judicial Conference supported such dialogue, recommending that "[a]ll courts of appeals ... participate in the pilot project to identify technical deficiencies in statutory law and to inform Congress of [the] same," (15) Congress often turned a deaf ear. According to Representative Robert W. Kastenmeier, who served from 1959 to 1991, "congressional attention has moved away from the judiciary." (16) Ignorant of most court-identified ambiguities, the first branch was aware of only high-profile decisions and Supreme Court cases. (17) Congress therefore tended to focus on a ruling's effect on particular constituents or interest groups rather than on a statute's underlying linguistic problems. (18) In 1996, Kastenmeier opined that "[c]ommunication to get Congress re-interested in the judiciary as an institution is needed." (19) After 1999, the Governance Institute's project "slipped into a state of partial desuetude.... in part because the project had not been institutionalized." (20)

3. THE JUDICIAL CONFERENCE AS AN ADVISORY INTERCIRCUIT COURT OF APPEALS

   If the legislature ignores highlighted statutory ambiguities, and the Judicial Conference is authorized to recommend legislation, then shouldn't the Conference support legislation to eliminate these ambiguities? The Conference has recently done exactly this. In Fall 2001, for instance, the Conference recommended amending 28 U.S.C. [section] 1332(c) because "courts have disagreed on how to interpret it." (21) The Conference's endorsement stated that the existing statute "was originally adopted to ... restrict[] the scope of diversity jurisdiction," but because of confusing language, some courts had interpreted the statute as "expan[ding] the availability of diversity jurisdiction for corporations with foreign contacts." (22)

   Testifying before Congress on behalf of the Judicial...