Virginia Lieutenant Governor Bolling has issued this ruling on his power to break deadlocks in the Virginia Senate. In brief, Bolling concludes that his power to vote includes organizational matters such as determining rules of procedure and voting on officers. However, he also finds that he lacks the power to vote on final passage of certain matters, such as appropriations bills, tax bills and state constitutional amendments, for which the Virginia Constitution requires the vote of a “majority of the members elected to each house.” The Lieutenant Governor, Bolling reasons, is not an elected member of the Senate and therefore cannot break ties on a final vote on such matters.
More on Gingrich and Judges
Former Speaker Gingrich’s plan to rein in the federal judiciary has met with near-universal criticism, but Curt Levey has gamely offered a qualified defense in the Wall Street Journal. Levey contends that the attacks on Gingrich’s proposal are “overblown.” As an example, he has this to say about Gingrich’s idea of subpoenaing federal judges to testify before Congress:
Congress routinely asks executive officials outside the White House to testify about their decisions. It occasionally subpoenas them to compel attendance, and arrest would be a last resort. It’s unclear why applying the same rules to the judicial branch threatens the separation of powers, especially if done in the context of considering judicial reform proposals like Mr. Gingrich’s. Subpoenaing Justices of the Supreme Court, the only court created by the Constitution, is a possible exception.
So let’s take a closer look at this aspect of Gingrich’s plan and see whether it is in fact as radical as critics have suggested.
Using Inherent Contempt Against Federal Judges
In my prior post on former Speaker Gingrich’s plan to subpoena federal judges to testify before Congress, I assumed that any enforcement of such subpoenas would follow the statutory contempt process set forth in 2 U.S.C. § 194. It crossed my mind to mention an alternative mechanism, but the idea seemed so unlikely (zany, one might even say) that I did not do so.
The aforementioned alternative involves what is known as “inherent contempt,” under which one house of Congress orders its Sergeant at Arms to take a recalcitrant witness into custody and to bring the witness before the bar of the House or Senate to be tried for contempt. This power was exercised on a regular basis until the early 20th Century, but the House has not used it since 1916 and the Senate has not used it since 1935. For more on how inherent contempt works, see here.
This weekend Gingrich suggested in an interview that Congress could use this power to secure the attendance of judges at congressional hearings. This is a surprising suggestion for several reasons. First, the recognized method for challenging inherent contempt is to seek a writ of habeas corpus in federal court. I imagine that it wouldn’t take the subpoenaed judge very long to procure a writ directing his or her release from congressional custody.
Continue reading “Using Inherent Contempt Against Federal Judges”
Billy Martin’s Contract Extended
According to the Hill: “Martin was hired in July. Since then he has ‘interviewed numerous witnesses, and conducted extensive legal research regarding the nature of due process rights which attach to Members of Congress appearing before this committee,’ according to the committee.”
But not read Point of Order, apparently. Sigh.
Virginia Court Declines to Hear Challenge to Lieutenant Governor’s Right to Vote in Senate
On ripeness and separation-of-powers grounds. Decision can be found here. No cite to Point of Order. Sigh.
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.
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.
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).
Continue reading “Can a Court Resolve the Virginia Senate Deadlock?”
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?
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.