Author: Michael Stern

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Judicial Accountability Hearings?

A few weeks ago former Speaker and current presidential candidate Newt Gingrich created a minor stir when he suggested that Congress should subpoena federal judges to question them about erroneous decisions.  Gingrich told the Value Voters Summit: “[if] judges . . . knew that when they were radically wrong they’d be hauled in front of Congress [it] would immediately have a sobering effect about how much power they have.”

I suspect that many people assumed, as I did, that this remark was just an aside thrown out to win applause from an audience upset and frustrated with many judicial decisions on issues such as abortion, gay rights and the role of religion in public life. It turns out, though, that the Gingrich campaign has a position paper, entitled “Bringing the Courts Back Under the Constitution,” which states “[a] Gingrich administration will use any appropriate executive powers, by itself and acting in coordination with the legislative branch, to check and balance any Supreme Court decision it believes to be fundamentally unconstitutional and to rein in any federal judge(s) whose rulings exhibit a disregard for the Constitution.”

One of the proposals in this paper is for Congress to hold “judicial accountability hearings,” in which “relevant Congressional committees [could] express their displeasure with certain judicial decisions by holding hearings and requiring federal judges [to] come before them to explain their constitutional reasoning . . . and to hear a proper Congressional Constitutional interpretation.” It is not clear from this sentence whether it is the committee or the federal judge who is supposed to hear the “proper Congressional Constitutional interpretation,” though I tend to think the latter.

Andrew Cohen’s response in The Atlantic is undoubtedly reflective of conventional legal thinking with regard to Gingrich’s proposal. Cohen makes three points regarding Gingrich’s idea, which Cohen calls “terrible,” “reckless” and “dangerous.” First, he says that it can’t work. Second, he says that it is a matter of “settled” constitutional law that a federal judge cannot be subpoenaed to testify regarding his or her judicial opinions. Third, he says that it would subvert the independence of the judiciary and replace the rule of law with the rule of demagogues.

Today I am going to focus on Cohen’s first point, which involves the non-normative question of whether Congress could, as a practical matter, actually force a federal judge to appear at a congressional hearing.

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Situation Comity

In her testimony before the Senate Judiciary Subcommittee on Administrative Oversight and the Courts last week, noted Supreme Court advocate Maureen Mahoney urged the panel not to advance pending legislation requiring that Supreme Court proceedings be televised. Among other things, she contended that such legislation would raise “serious constitutional questions” on separation of powers grounds.

I don’t have much to say about the technical constitutional issue. Nothing in constitutional text, history or precedent appears to clearly answer the question of whether the proposed legislation crosses the line between a reasonable regulation of judicial proceedings and an unwarranted infringement on judicial independence. If you want to read an argument that it does, see this recent law review note, but frankly it failed to persuade me.

The more important issue to me, though, is not whether Congress has the constitutional authority to enact this legislation. Rather it is whether Congress ought to abstain from exercising its authority in light of that warm and fuzzy notion of inter-branch harmony known as “comity.”  Here Congress could do worse than to consider a very old Supreme Court case cited in Mahoney’s testimony, Anderson v. Dunn, 19 U.S. 204 (1821).

Anderson speaks to a constitutional branch’s inherent authority to control its physical environs. As Mahoney quotes the Anderson Court, “courts of justice are universally acknowledged to be vested, by the very creation” with the “power to impose silence, respect and decorum, in their presence” and “to preserve themselves and their officers from the approach and insults of pollution.” Id. at 227.

Anderson, however, did not involve a court’s use of this inherent authority. Instead, it involved the exercise of the contempt power by the U.S. House of Representatives, which, the Court found, was similarly entitled to control its proceedings, particularly with respect to matters occurring “within their own walls.”

Whether or not the Court would be similarly receptive to congressional prerogatives today remains to be seen. There are those who think the notion of each branch having special power to control the activities within its own walls is archaic. Yet I think it goes a long way toward explaining the outrage that Members of Congress expressed when the Justice Department unilaterally executed a search warrant in the Rayburn House Office Building. Notwithstanding the debatable technicalities of the Speech or Debate objection, these Members instinctively believed that it was improper for the executive and judicial branches to breach the walls of Congress, as it were, without permission.

The Senate Judiciary Committee would be well advised to keep this in mind before moving forward with cameras in the Supreme Court. Perhaps Mahoney’s testimony might best be summarized as a reminder to both Congress and the Court of this non-constitutional dictum: Do unto others as you would have others do unto you.

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Can a Court Resolve the Virginia Senate Deadlock?

Virginia Democrats may go to court over the issue of whether the Lieutenant Governor can break ties on organizational matters in the Senate. As indicated in a previous post, I am skeptical about the merits of this claim.

(Another useful resource on this subject is the website of the National Conference of State Legislatures, which contains a comprehensive list of state legislative chambers which have been tied over the years. Of particular interest here is NCSL’s note that “A lieutenant governor’s vote broke organizational deadlocks in Idaho (1990) and Pennsylvania (1992).  There was speculation that the lieutenant governor would determine party control in the Virginia Senate in 1995, but a power-sharing agreement between the political parties was negotiated instead.”)

For present purposes, however, lets assume that Virginia Democrats are correct on the merits. Can they get judicial relief? If this were a question of congressional organization, I would say the answer almost certainly would be no. Federal courts are extremely reluctant to intervene in the internal affairs of the legislature, and have employed a variety of doctrinal methods to avoid doing so. See, e.g., Vander Jagt v. O’Neill, 699 F.2d 1166 (DC Cir. 1983) (refusing to hear Republican challenge to allocation of committee seats in the U.S. House of Representatives).

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What Happens to the Supercommittee’s Records?

This story by Richard Lardner of the Associated Press (“Debt-reduction ‘supercommittee’ hid in plain sight”) discusses how the “Supercommittee” has conducted its business largely behind closed doors. The article cites this blog’s view that the committee’s narrow interpretation of the term “meeting” as used in its open meeting rule enabled it to conduct virtually all of its deliberations out of public view.

Lardner also raises an interesting question regarding the disposition of the committee records. Rule III(3) of its rules provides that “[u]pon termination of the Joint Select Committee, the records of the Joint Select Committee shall be treated as Senate records under S. Res. 474, 96th Congress as directed by the Secretary of the Senate.” S. Res. 474, in turn, provides that committee records, once archived, are to be made available to the public after 20 years unless (1) the records were already public before being archived (in which case they can be made available to the public immediately), (2) the records contain information relating to the privacy of specific individuals, such as investigative or personnel files (in which case they are not available for 50 years) or (3) the committee prescribes a different time for public release of its records.

As a practical mater, the decision as to what committee records are to be archived will be made by Senate archivists working with committee staff. My understanding is that the Senate archivists consider notes, emails and similar documents to be committee records, at least to the extent that they document significant committee matters. This understanding is based in part on my experience with the Senate Homeland Security and Governmental Affairs Committee; following the enactment of the Intelligence Reform and Terrorism Prevention Act of 2004, the committee’s archivist asked staff to identify and collect emails, notes and drafts that would document the negotiating and deliberating process. (We grumbled, but made reasonable efforts to comply).

In the case of the Supercommittee, the fact that it has no permanent or clearly demarcated offices may make this process even more haphazard than usual. But one assumes that the Senate archivists, acting under the Secretary’s direction, will do their best to gather those records that would shed light on the committee’s work.

But who will see these records? Unless the committee adopts a resolution or order providing for earlier public release, all of these records (save those already public) will remain sealed at the National Archives until at least 2031.

Perhaps the Congressional Transparency Caucus would like to weigh in?

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The Use and Abuse of Legislative Privilege- Canadian Edition

The Speaker of the Canadian Parliament (who is 32 years old!) issued this ruling last week in response to a point of order. The issue concerned the action of a Government Minister who had “tabled a document” with the House detailing a political donation made by a particular named individual. The point of order was whether this action invaded the privacy of the named individual and would “put the chill of fear into public servants and individuals in Canada donating to a political party that a minister will use that against them.”

The Speaker acknowledged “that ministers enjoy considerable latitude and may, at their discretion, table a wide range of documents in the House.” However, he also quoted a predecessor’s admonition regarding the “awesome and far-reaching privilege” of freedom of speech enjoyed by members of the House:

Such a privilege confers grave responsibilities on those who are protected by it. By that I mean specifically the Hon. Members of this place…. All Hon. members are conscious of the care they must exercise in availing themselves of their absolute privilege of freedom of speech. That is why there are long-standing practices and traditions observed in this House to counter the potential for abuse.

The Speaker also cited the admonition from the House of Commons Procedure and Practice, which states “Members are discouraged from referring by name to persons who are not Members of Parliament and who do not enjoy parliamentary immunity, except in extraordinary circumstances when the national interest calls for this.”

He concluded by reminding members “to use great care when referring to or singling out an individual who does not have a voice here in this House and to avoid circumstances when, by such reference, an individual could have his or her reputation damaged without having the opportunity to respond.”

A word to the wise.

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Judge Griffith Will Be Delivering The Leventhal Lecture This Tuesday

This Tuesday, November 15, from 12 pm to 2 pm, the Administrative Law and Agency Practice Section of the D.C. Bar will host the Annual Harold Leventhal Lecture. Our speaker will be the Honorable Thomas B. Griffith of the U.S. Court of Appeals for the D.C. Circuit. Judge Griffith will speak on “Congress in the D.C. Circuit.”

Judge Griffith brings a unique perspective to this topic. As we have discussed, relatively few federal judges have had prior legislative experience. Judge Griffith, however, is certainly the only federal judge to have served as the chief legal officer of either chamber of Congress. From 1995 to 1999, he served as Senate Legal Counsel, during which he advised the Senate on numerous legal matters of great significance, including the impeachment trial of President William J. Clinton.

I will be introducing Judge Griffith on behalf of the Administrative Law Section. Further details and registration information may be found here.

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Breaking a Tie in the Senate

(Update- see this more recent post on the possibility of a court challenge to the Lieutenant Governor’s vote).

It appears the Virginia Senate, following Tuesday’s elections, will be equally divided, with Republicans holding 20 seats and Democrats holding 20 seats. The Democrats want a shared-power arrangement, meaning that committee chairmanships and other responsibilities would be divided equally between the two parties. This is apparently what was done on the one previous occasion, in the 1990s, where such a situation arose. Republicans, on the other hand, contend that they are entitled to control the chamber because the Republican Lieutenant Governor has the power to break ties.

One Democratic Senator, “Chap” Petersen, told the Washington Post that “the lieutenant governor is not a member of the Senate” and that, if Republicans seized power, Democrats could sue to stop it. Senator Petersen seems to be saying that the Lieutenant Governor lacks the constitutional power to break ties with regard to internal matters such as committee assignments and other rules.

The Virginia Constitution provides that “[t]he Lieutenant Governor shall be President of the Senate but shall have no vote except in case of an equal division.” This provision was apparently (my research on this is admittedly cursory) added as part of the Constitution of 1869. It closely parallels Article I, Section 3, clause 4 of the U.S. Constitution, which provides that “[t]he Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.”

Because of the similarity of the constitutional provisions, it is worth taking a look at how the U.S. Senate has dealt with similar issues.

On several occasions during the 19th Century, questions were raised as to whether the Vice President’s right to break ties extended beyond legislative matters. For example, in 1850 Vice President Millard Fillmore inquired of the Senate whether “he might vote in a case where there was a tie in the election of an officer of the Senate.” Senator (and former Vice President) John Calhoun responded that he had voted several times on executive nominations during his tenure as Vice President. “The opinion of the Senate seeming to be in favor of the power of the Vice-President to vote in the case before them, Mr. Fillmore cast his vote for one of the candidates.” Hinds Precedents § 5972.

In 1877 the issue arose again when the Senate was considering a question of whether to seat a Senator. The vote being equally divided, Vice President William Wheeler voted in the negative. Senator Thurman initially challenged the Vice President’s right to vote on the question, but, after a debate in which the Fillmore precedent was discussed, Thurman withdrew his challenge and Wheeler ruled that there was “no doubt of his right to vote in all cases in which the Senate is equally divided.” Id. § 5977.

Finally, in 1881 Vice President Chester Arthur cast the tie-breaking vote with regard to organizing the Senate at a time when the parties had equal voting strength. Although Senator Saulsbury expressed the opinion that the Vice President was not empowered to vote on such a question, the earlier precedent was again cited, and the Vice President proceeded to break the tie. Id. § 5975.

In the U.S. Senate, therefore, the precedent seems well-established that the Vice President’s tie-breaking vote extends to non-legislative votes, including matters relating to control and organization of the chamber.

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The Solyndra Subpoenas and the White House Response

The House Energy and Commerce Committee has issued subpoenas to the White House Chief of Staff and the Chief of Staff to the Vice President, seeking documents relating to the Solyndra loan scandal. Specifically, each subpoena asks for “[a]ll documents referring or relating in any way to the $535 million loan guarantee issued to Solyndra, Inc. by the Department of Energy.” This is the only request made by the subpoenas. Although they provide a non-exclusive list of examples that would be responsive to the request, they ask for no other documents.

In this letter, the White House Counsel Kathryn Ruemmler responds that the subpoenas are “unprecedented.” Unprecedented in what sense? Obviously, congressional committees have issued numerous subpoenas to prior administrations, including subpoenas seeking documents and testimony from White House officials. Such subpoenas were rare before Watergate (and virtually unheard of before World War II), but they have become rather commonplace since. Here are some examples of congressional subpoenas issued to the Bush Administration. During the Clinton Administration, House Government Reform Committee Chairman Dan Burton became something of a legend for the number of subpoenas he issued (reportedly over a thousand), including many to the White House.

Perhaps there is something about these particular subpoenas that makes them, in Ruemmler’s view, “unprecedented.” But nowhere in her letter does she explain what that might be.

Instead, her primary objection seems to be that the subpoenas are “overbroad.” She characterizes the document request as “extremely broad” because it “encompasses all communications within the White House from the beginning of this Administration to the present that refer or relate to Solyndra,” and she suggests that “any document that references Solyndra, even in passing, is arguably responsive to the Committee’s request.” She contends that responding to such an “expansive request” would place “an unreasonable burden on the President’s ability to meet his constitutional duties.” As an example, she cites the fact that the subpoenas would require producing “thousands of pages of news clips” literally responsive to the requests.

It is hard to characterize this objection as anything but silly. Asking the White House to produce all documents relating to a single small company is hardly placing an undue burden on the presidency. Federal agencies routinely respond to subpoenas and FOIA requests that are far broader in scope. All that needs to be done is to identify those locations most likely to contain responsive documents and to conduct a reasonable search thereof. Since most if not all of those locations will consist of electronic databases, a single search containing the word “Solyndra” would likely suffice.

Continue reading “The Solyndra Subpoenas and the White House Response”

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Congressional Regulation of the Press Galleries

As described in this Hill article by Alexander Bolton, Vice President Biden’s office has filed a complaint with the Senate Press Gallery regarding the tactics used by a credentialed reporter who used the pretense of posing for a photograph with the Vice President to get close enough to ask him a question. In case you were wondering what authority the Press Gallery has, and where it comes from, here is a brief summary.

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Judge Walton Dismisses Kucinich v. Obama

Apparently he saw no more way of distinguishing Campbell v. Clinton than I did.

In fact, the court sounded a bit peeved that the case was brought in the first place: “While there may conceivably be some political benefit in suing the President and the Secretary of Defense, in light of shrinking judicial budgets, scarce judicial resources, and a heavy caseload, the Court finds it frustrating to expend time and effort adjudicating the relitigation of settled questions of law. The Court does not mean to imply that the judiciary should be anything but open and accommodating to all members of society, but is simply expressing its dismay that the plaintiffs are seemingly using the limited resources of this Court to achieve what appear to be purely political ends, when it should be clear to them that this Court is powerless to depart from clearly established precedent of the Supreme Court and the District of Columbia Circuit.”