"separateness but Interdependence, Auytonomy but Reciprocity": a First Look at Federal Judges' Appearances Before Legislative Committees - Harvey Rishikof and Barbara A. Perry

• Publication year: 1995

"Separateness but Interdependence, Autonomy but Reciprocity": A First Look at Federal Judges' Appearances Before Legislative Committeesby 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,¹ from which we derive the main title of this article. In the Steel Seizure Case, Jackson asserted that "[w]hile the Constitution diffuses power the better to secure liberty, it also 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. 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 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."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."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."⁶ 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 spirit of the laws: "'[TJhere is no liberty if the power of judging be not separated from the legislative and executive powers.'"⁸ Yet Hamilton worried that because the judiciary would be the weakest branch of government, it would be "in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches."⁹ 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."¹⁰

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 commission that now bears his name to investigate the 1963 assassination of President John Kennedy.¹⁶

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.¹⁸

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.¹⁹ 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 of labels 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.²² 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 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.²⁶ 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.

♦ 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.²⁷

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 of judicial/legislative relations is multifacet-ed, this Article narrows its scope to official appearances of Article III judges before legislative committees.

IV. Gathering Data on Judges' Testimony

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