[Senate Hearing 109-181]
[From the U.S. Government Printing Office]

                                                        S. Hrg. 109-181



                               before the


                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION


                             JULY 19, 2005


                          Serial No. J-109-32


         Printed for the use of the Committee on the Judiciary


24-548                 WASHINGTON : 2005
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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
                       David Brog, Staff Director
                     Michael O'Neill, Chief Counsel
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director

        Subcommittee on Administrative Oversight and the Courts

                    JEFF SESSIONS, Alabama, Chairman
ARLEN SPECTER, Pennsylvania          CHARLES E. SCHUMER, New York
JON KYL, Arizona                     RUSSELL D. FEINGOLD, Wisconsin
                 William Smith, Majority Chief Counsel
                Preet Bharara, Democratic Chief Counsel

                            C O N T E N T S




Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................    75
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York...........................................................    16
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     1


Alexander, Hon. Lamar, a U.S. Senator from the State of Tennessee     2
Berman, Hon. Howard, a U.S. Representative in Congress from the 
  State of California............................................     6
Greve, Michael S., John G. Searle Resident Scholar, Director, AEI 
  Federalism Project, and Co-Director, AEI Liability Project, 
  American Enterprise Institute, Washington, D.C.................    19
Jones, Nathaniel R., Judge (Ret.) and Partner, Blank Rome LLP, 
  Cincinnati, Ohio...............................................    12
Jost, Timothy Stoltzfus, Robert L. Willett Family Professor of 
  Law, Washington and Lee University School of Law, Lexington, 
  Virginia.......................................................    17
King, Troy, Attorney General, State of Alabama, Montgomery, 
  Alabama........................................................    10
Sandler, Ross, Professor of Law, and Director, Center for New 
  York City Law, New York Law School, New York, New York.........    13
Schiffer, Lois J., former Assistant Attorney General, Environment 
  and Natural Resources Division, Department of Justice, 
  Washington, D.C................................................    21

                       SUBMISSIONS FOR THE RECORD

Greve, Michael S., John G. Searle Resident Scholar, Director, AEI 
  Federalism Project, and Co-Director, AEI Liability Project, 
  American Enterprise Institute, Washington, D.C., prepared 
  statement......................................................    36
Jones, Nathaniel R., Judge (Ret.) and Partner, Blank Rome LLP, 
  Cincinnati, Ohio, prepared statement...........................    47
Jost, Timothy Stoltzfus, Robert L. Willett Family Professor of 
  Law, Washington and Lee University School of Law, Lexington, 
  Virginia, prepared statement...................................    60
King, Troy, Attorney General, State of Alabama, Montgomery, 
  Alabama, prepared statement....................................    67
Lazarus, Simon, Public Policy Counsel, National Senior Citizens 
  Law Center, Washington, D.C., prepared statement...............    72
Legal Times, April 25, 2005, article.............................    78
National Center for Youth Law, Sara Woodward for Curtis L. Child, 
  Senior Attorney, Sacramento, California, letter................    80
Sandler, Ross, Professor of Law, and Director, Center for New 
  York City Law, New York Law School, and David Schoenbrod, 
  Professor of Law, New York Law School, New York, New York, 
  statement and attachment.......................................    85
Schiffer, Lois J., former Assistant Attorney General, Environment 
  and Natural Resources Division, Department of Justice, 
  Washington, D.C., prepared statement...........................    97
Snoble, Roger, Chief Executive Officer, Los Angeles County, 
  Metropolitan Transportation Authority, Los Angeles, California, 
  statement......................................................   109



                         TUESDAY, JULY 19, 2005

                              United States Senate,
  Subcommittee on Administrative Oversight and the Courts, 
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:32 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Jeff 
Sessions, Chairman of the Subcommittee, presiding.
    Present: Senators Sessions and Schumer.

                      THE STATE OF ALABAMA

    Chairman Sessions. The hearing will come to order.
    Today's hearing is an important hearing that deals with a 
matter that people who have been a Governor, like Governor 
Alexander, or Attorney General, as I have, know something about 
and understand the importance of. It is the question of a 
consent decree that may have been entered into at one point in 
time between an attorney for a governmental institution--
sometimes it is the Attorney General; sometimes it may be the 
attorney for the school board or the county or the city--and to 
what extent for all time does that consent decree bind that 
Government entity. It is a matter of legitimate concern.
    Private companies settle lawsuits, and they enter into 
agreements. Governmental entities can settle lawsuits also. But 
sometimes it implicates constitutional questions to an 
important degree.
    We have an excellent panel today, a group of people who 
have thought about these issues and who have given serious 
consideration to them. It is a question of How do we best 
preserve the proper balance between executive, legislative, and 
judicial branches? How do we preserve the power of the American 
people to control the policies of their Government? And to what 
extent should an Attorney General or Governor or school board 
superintendent who 15 years ago, perhaps now in the grave, to 
what extent can they control the school board policy of today 
and how do you deal with that?
    So those are questions that are relevant. We will hear some 
good testimony. We will have panelists on both sides, and I 
look forward to hearing the discussion today.
    I will not worry about particularly doing our 
introductions. There is all the information I got, but I do not 
need it. Senator Alexander, we are pleased that you are here 
today. This is an issue that I know you care about and have 
gathered quite a few cosponsors on legislation that would deal 
with some of what you perceive as the excesses here. You have 
served as the Governor of Tennessee. You are a lawyer. I know 
you clerked for Judge John Minor Wisdom of the Fifth Circuit 
Court of Appeals. And you understand the issues and have 
written and read deeply about it.
    Congressman Berman, we are delighted to have you with us. 
You serve on the Judiciary Subcommittee on Courts, as this 
Subcommittee is the Court Subcommittee for the Senate, and we 
are delighted to have you with us and to hear your thoughts on 
the subject.
    Senator Alexander, would you set forth your thoughts on 
this subject? Then we will go to Representative Berman, who has 
a different view.

                       STATE OF TENNESSEE

    Senator Alexander. Thank you very much, Mr. Chairman, and, 
Representative Berman, it is good to see you again. I thank you 
for being here and contributing to this.
    I want to thank you, Senator Sessions, for chairing a 
hearing on this important subject, the Federal Consent Decree 
Fairness Act. If I could sum up what we are about today, it is 
this: It is passing legislation, this legislation, which I 
believe would help leave policy decisions where they ought to 
be--in the hands of officials elected through the democratic 
process--and leave the protection of individual rights where 
that ought to be--in the hands of the courts. I think that is 
what the discussion is about today, and I believe this bill 
helps do that.
    I might also say that this is not the first hearing on this 
legislation. The House has had a hearing on the legislation and 
I am sure gathered useful information. And I participated, and 
others did, in a hearing at the American Enterprise Institute 
earlier this year where a number of people of various points of 
view from around town came, offered their suggestions, and the 
bill has gradually been improved as we tried to take into 
account those suggestions. So the hearings have a very useful 
    This legislation was introduced in March of this year. I 
was cosponsor, along with Senator Mark Pryor of Arkansas. The 
legislation now has 24 cosponsors, both Democrats and 
Republicans, in the United States Senate. A companion bill has 
been introduced by Democratic Congressman Jim Cooper and 
Republican Whip Roy Blunt in the House of Representatives, and 
it has also received significant bipartisan support.
    The House bill has received a hearing, as I mentioned, 
before the Subcommittee on Courts, the Internet, and 
Intellectual Property of the House Judiciary Committee.
    The bill addresses a problem that can best be summed up by 
the phrase ``Democracy by Federal court decree.'' This is a 
phrase that was coined by Professor Ross Sandler and David 
Schoenbrod in their book ``Democracy by Decree: What Happens 
When Courts Run Government.'' I guess lots of times people 
wonder where does the idea for a piece of legislation come 
from. Does it come from a lobbyist? Does it come from the brain 
of a House Member or a Senator? In this case, it came from the 
brains of these two professors and from their background and 
experience. Both of them began as lawyers with the Natural 
Resources Defense Fund. In fact, they were the lawyers who were 
bringing the kinds of cases that often negotiate Federal court 
consent decrees. And they produced a remarkably balanced book, 
and the contents of the book were endorsed by a variety of 
individuals, including former Senator Bill Bradley; Ed Koch, 
the former Mayor of New York City; John Sexton, the president 
of New York University; Chris DeMuth, president of the American 
Enterprise Institute.
    They have contributed substantially to the development of 
this bill in this book. They refer to what I would call an 
alarming trend of taking public policy decisions out of the 
control of elected officials--the Governor, the legislature, 
the mayor, the city council--and putting them indefinitely in 
the hands of a small group of plaintiffs' attorneys and an 
unelected Federal judiciary.
    The Federal Consent Decree Fairness Act addresses these 
problems by establishing new principles and procedures for 
creating, managing, and eventually ending Federal court 
supervision of State and local policy decisions. The bill 
levels the playing field for State and local governments 
without undermining the role of the Federal courts. And as I 
mentioned at the outset, passing this bill would leave policy 
decisions where they ought to be: in the hands of officials 
elected through the democratic process. It would also leave the 
protection of individual rights where it ought to be: in the 
hands of the courts.
    The bill takes a three-pronged approach.
    One, it sets out a series of findings based on dicta in the 
2004 Supreme Court decision Frew v. Hawkins that suggests that 
consent decrees should be narrow in scope and return policy 
decision to State and local governments as soon as possible.
    Two, the legislation places term limits on consent decrees. 
The bill does not automatically end consent decrees, but it 
does allow State and local governments, after 4 years or the 
end of the term of the official who authorized the consent 
order, to go back into court and ask that a decree be reviewed.
    Three, when the decree is reviewed by the court, the burden 
of proof is now shifted to the plaintiffs to demonstrate that 
there is an ongoing violation of Federal law that requires 
continued court supervision to correct.
    So, you see, Mr. Chairman, from beginning to end the court 
still has supervision over the matter. This just makes it 
easier for the newly elected Governor or newly elected mayor to 
get into the court, and then it is up to the person who feels 
aggrieved to persuade the court in the first place or to carry 
the burden of proof that this order still needs to be in 
    I believe this takes a balanced approach to the problem of 
outdated consent decrees. It is based on scholarship, as I 
mentioned. It reflects the thinking of the Supreme Court. And 
it creates a fair approach that puts the plaintiffs and the 
State and local governments on a level playing field.
    Mr. Chairman, consent decrees are a useful tool. However, 
some consent decrees have lingered far too long and have become 
outdated. Yet they remain in force because the burden on State 
and local governments to modify or vacate them is too great.
    For example--and these are examples that Mr. Sandler may in 
his testimony refer to, so I will be brief about it. But, for 
example, in New York there is a 1974 consent decree that 
mandated the provision of any form of bilingual education for 
more than three decades. The result is a program that forces 
children into certain types of bilingual classes--
    Chairman Sessions. Senator Alexander, would you repeat 
that? Bilingual education for how long?
    Senator Alexander. The consent decree was entered into in 
1974 in New York City, and it established a form of bilingual 
education for children in New York City at that time for more 
than three decades. I believe what it said is that there needed 
to be a teacher in a particular language for any group of 
children of more than 10 who speak a particular language.
    Now, today, parents in New York City would like to have 
their children in a different kind of class called English as a 
Second Language where they learn English more rapidly. But the 
fact is that because of the outdated consent decree, today's 
parents and today's school officials cannot move to that kind 
of education.
    In Los Angeles, a 1996 consent decree has forced the 
Metropolitan Transit Authority to spend 47 percent of its 
budget on city buses only, leaving just over half the budget to 
cover all the other transportation needs of the Nation's second 
largest city. Now, maybe that was the right thing to do in 
1996, but the consent decree mandated the purchase of 582 buses 
in the first 6 years it was in effect, the net result of which 
was only a 3-percent increase in ridership. In 2004, in spite 
of this track record, the court ordered the MTA to purchase 145 
more buses, even though elected officials would like to spend 
their transportation money in a different, more effective way.
    And, finally, in Tennessee, my home State, the Democratic 
Governor, Governor Bredesen, found his attempts to reform our 
State's Medicaid program, called TennCare, blocked by three 
outdated Federal court consent decrees. They went back so far 
that they included consent decrees that were entered into when 
I was the Governor of Tennessee. The limits imposed by these 
decrees forced the Governor to scale back benefits for 300,000 
beneficiaries in order to afford both TennCare and the public 
education program. And he was able to accomplish this only 
after a lengthy and expensive Federal court battle. In other 
words, the Governor was elected to try to reform Medicaid in 
Tennessee. He could persuade his administration. He could 
persuade the legislature. He persuaded the Federal Government. 
But, still, he then had three Federal courts to persuade of 
what he expected to do. And every month that went by, while he 
was waiting for the court to make a decision, it cost millions 
and millions of dollars, enough money to give Tennessee 
teachers a pretty big pay increase.
    Now, this latest example emphasizes why I believe it is 
important for Congress to move this legislation quickly 
alongside the medication legislation that we will consider this 
fall. If I may, I will finish up with about a couple more 
pages, if I have time for that.
    Chairman Sessions. Please. We have a goal of 10 minutes, 
but you are free to go over.
    Senator Alexander. I am a member of the Budget Committee, 
and I have listened very carefully to this year about how 
States are unable to control the growth of Medicaid spending. 
As we know, the Federal Government spends about 60 percent of 
Medicaid costs, and the States come up with the other 40 
percent under Federal rules.
    For example, the State of Tennessee, when I left the 
Governor's office in 1987, we were spending 51 cents out of 
every State tax dollar on education and 15 cents on health 
care. Today, Tennessee spends 40 cents on education and 31 
cents on health care, with Tennessee's Medicaid program 
accounting for most of that increase. Meanwhile, State college 
tuitions go up, teachers' salaries stay flat, art and music 
programs are shut down, and pre-K and after-school programs are 
never started. It is the same story in State after State.
    In other words, who is going to decide whether to increase 
Medicaid spending or increase teachers' salaries or start a 
pre-K program? In our State, we believe we elect Governors and 
legislators to do that, not Federal judges.
    The budget resolution we are considering in Congress calls 
for the Federal Government to slow the growth of Medicaid 
spending by $10 billion over the next 5 years out of 
approximately $1.12 trillion total. I support that. But I 
argued on the floor that to reduce the Federal deficit, we must 
curb Medicaid spending, but we cannot simply cut back on 
Federal Medicaid spending without giving States the tools they 
need to also reduce the growth of State Medicaid spending.
    States are caught in the middle when Congress tells them to 
curb spending and then the Federal court, because of some 
outdated consent decree, tells the State find your savings 
somewhere else.
    So it is my belief that the Federal Consent Decree Fairness 
Act is an essential piece of the Medicaid reform package that 
we will consider this fall. And if we are going to ask States 
to help bring health care costs under some control, then we 
must allow them the tools they need to make these decisions. We 
should put those decisions and other decisions on issues that 
have traditionally rested with elected officials in the hands 
of elected officials who are held accountable for those 
    I appreciate the opportunity to testify here today. I look 
forward to working with members of the Judiciary Committee to 
advance this legislation. I ask to include in the record with 
these remarks a copy of a Legal Times article that I wrote in 
April of this year describing the legislation.
    Thank you, Mr. Chairman.
    Chairman Sessions. Thank you, Senator Alexander, for your 
thoughtfulness and your hard work on this project.
    Congressman Berman, we are delighted to have you on this 
side, and we would be delighted to hear from you at this time.


    Representative Berman. Well, thank you very much, Mr. 
Chairman. I thank you very much for inviting me and allowing me 
to testify. I have tremendous respect and affection for Senator 
Alexander, whom I have gotten to know in other circumstances, 
and so I am sorry to be here opposing a bill that he obviously 
is both deeply committed to and has thought a great deal about.
    I understand the motivations behind the bill. There are a 
number of consent decrees which govern various bodies in and 
around my own district, at least one of which I find in certain 
respects problematic. But the overarching problem with this 
bill essentially is that it allows the city or State to move to 
vacate or modify, and by the city or State making that motion 
to go forward, the burden then is with the plaintiff in that 
original consent decree to reprove his case simply because the 
defendant has asked for a review of the consent decree.
    You are going to hear from other witnesses a lot of the 
specifics, but I want to just touch on a few of them, if I 
might, and what I think the implications are.
    Under the proposed law, consent decrees may be reviewed 
every 4 years or after any change of Government. So, for 
example, if after years of negotiation a decree was signed in 
the midst of a mayor's term or, more likely, near the end of 
his term, a new mayor could immediately review and dismantle 
the decree. And I mean here dismantle the decree whether the 
problem has been addressed or not.
    To further complicate matters, it is unclear what 
constitutes change of Government. How many of the five-member 
Board of Supervisors would have to change before it constitutes 
a change of Government? Would one supervisor suffice? Would two 
or three be required? Would they have to be replaced or would 
their simple re-election trigger this provision?
    With the ability to subject a consent decree to review at 
almost any point, given this formulation, I cannot imagine--and 
this I think is one of the biggest consequences should this 
bill become law--why any plaintiff, whether the Federal 
Government or a private party, will ever settle a case? Why 
settle a long-term problem by consent decree if the settlement 
is essentially void in 4 years or, more likely, much sooner 
than that? The whole consideration to produce that kind of 
consent decree is gone in the minds of the plaintiff and his or 
her attorney because of the fact that he does not have really a 
final order for a long period of time.
    Consider the impact of this bill where one State sues 
another under original Supreme Court jurisdiction. These cases 
can take many years to litigate, and when they settle, the 
consent decrees can last many years. California and Arizona, a 
big fight about Colorado River water. The consent decrees, they 
operate under a water rights agreement stemming from a 1952 
lawsuit, a 1964 consent decree, several supplemental decrees, a 
1989 motion to reopen the decrees to allot additional water 
rights for Indian reservations, and a 2000 Supreme Court ruling 
on whether that motion was precluded.
    Under this regime, that whole case would have to be 
relitigated every 4 years or whenever a new Governor wanted to. 
In the context of either California or Arizona, depending on 
who is moving, these are serious issues that we thought had 
been settled that are now opened up for relitigation. There are 
several procedural issues, each having profound impact on the 
viability of consent decrees.
    Consider the requirement that the judge has to rule within 
90 days or the decree is automatically terminated. This time 
frame is unrealistic. Many decrees will be dissolved simply as 
a result of the passage of that time. Because the bill shifts 
the burden to the plaintiff to re-establish the burden of 
proof, there will always be need for a full retrial on the 
decree's merits. Courts are often simply unable to work that 
fast given their existing caseload. The court can still decide 
the motion if it fails to rule within 90 days, but the decree 
is vacated during that time. As discovery for many of these 
cases is time-consuming, it could be years before the consent 
decree is reinstated.
    The bill proposes a compensation cap of no more than $75 an 
hour. That is about one-fifth or one-eighth of what Special 
Masters normally get in their law practice. It is unlikely we 
are going to be able to get a truly skilled, in-demand person 
to give up the time necessary to supervise a consent decree 
with that kind of limitation.
    Finally, the proposed legislation recognizes that there are 
certain things that are so sensitive that they should not be 
subject to the bill--in this case, consent decrees involving 
school desegregation on the basis of race, color, or national 
origin. But I think as the Committee thinks about it, they are 
going to find some other areas where it is also very sensitive, 
employment discrimination cases, public accommodations cases, 
under the Civil Rights Act of 1964, discrimination in terms of 
grant monies going, Voting Rights Act cases. There are critical 
decisions in these areas that will be vacated by virtue of this 
bill as it is presently drafted.
    I do not want you to get me wrong. I am very sympathetic to 
the pressures faced by local governments when dealing with 
consent decrees. I mentioned this case involving the 
Metropolitan Transit Authority in Los Angeles that Senator 
Alexander spoke to. Take, for example, the New York City--not 
the case about bilingual. I am not familiar with that, but on 
special education. There a consent decree requires a huge 
amount of money be spent on special education, pulling money 
from other priorities, and substantial amounts of money. Why? 
Because in 1975 Congress created a Federal right to special 
education in the Education for All Handicapped Children Act. 
What we did not do was appropriate the funds to local districts 
to meet the obligation we imposed on them through law.
    The issue here is not the consent decree. It is that we 
should either fund the mandate or change the nature of the 
Federal law. These lawsuits that result in these consent 
decrees do not come out of the good ideas and utopian ideas of 
a plaintiff's attorney or a plaintiff or the judge's sense of 
what is right to do. They come based on the obligations of 
Federal law. And if there are consent decrees that are imposing 
too heavy a burden, we are the people who can revisit that 
issue through taking a look at the Federal law or our failure 
to appropriate and meet mandates we have imposed on State and 
local governments. I do not think we should avoid 
accountability for those decisions by instead providing this 
method for the consent decrees.
    And coming to a conclusion here, this is all done in the 
context of a 2004 decision in Frew v. Hawkins, and the authors 
and proponents of the bill say it is consistent with that 
decision. But I read that decision totally different. All nine 
Justices were on the same side--Scalia, Thomas, Rehnquist--all 
nine of them. They all upheld the concept of consent decrees, 
and they set standards that district courts should use when 
reviewing them. They did not say to get rid of consent decrees. 
They did not say to require the plaintiffs to reprove their 
case. What they suggested was a prescription to fix the 
problem. They wrote, ``If the State establishes reason to 
modify the decree, the court should make necessary changes. 
Where it has not done so, however''--that is, where the State 
has not established a reason to modify--``the decree should be 
enforced according to its terms.'' And in the context of that 
decision, all nine Justices talked about giving a great deal of 
deference to the local governments and the State governments in 
making their decisions.
    So I disagree in the first instance that State and local 
officials' hands are truly tied at the present time. They can 
go in to modify. Even if they were, the answer would not be the 
effective elimination of all consent decrees. Congress should 
either fund the mandate or change the underlying Federal law. 
Consent decrees I think have tended to become a bit of a 
scapegoat, and I think the underlying problems will continue to 
exist and that this bill may create more problems than it 
    Thank you.
    Chairman Sessions. Well, thank you. Those were very, very 
interesting and important comments both of you have made.
    I think about a situation that was most stark to me when I 
was Attorney General--actually, before I became Attorney 
General. The Alabama Supreme Court had one African-American out 
of nine on it. Statistically speaking, maybe two would have 
been appropriate with the population. But two African-Americans 
had run for the Supreme Court and won, and the only two that 
had ever run in recent years, and both had won. And a lawsuit 
was filed to challenge that. Normally they make the challenges 
that run from districts. But that would not have helped 
apparently the plaintiffs, who were also working with the trial 
lawyers, who had a majority on the Supreme Court.
    And so a proposal was entered into with the Attorney 
General, my predecessor, and the proposal was, an offer as a 
consent decree, that the plaintiffs would nominate two 
additional judges, the court would go from nine to eleven 
judges. We would add two new judges. They would not be elected 
by the people but would be appointed by the committee, and 
presumably the State legislature would fund them, and nobody 
was particularly concerned that it was in total violation of 
Alabama's constitutional creation of the judicial branch of 
government. Shortly before he left office, my predecessor 
signed that agreement, and it was approved by the Federal 
    When I got elected Attorney General, I appealed and the 
court rejected it and threw it out, said there was not a 
sufficient foundation for that.
    Senator Alexander, I am sympathetic with the idea that a 
departing office holder, for whatever reasons--good intentions 
or maybe not--can enter into a decree that could impact very 
important governmental relations in a way that may be 
unforeseeable even 5, 10 years down the road. So I appreciate 
    Let me ask both of you, if you would--this is an important 
issue--would you join me at the panel and stay and participate 
in the questioning? Congressman Berman, we are delighted to 
have you, if you have got the time. And, Senator Alexander, we 
would be delighted to have you join me as we discuss this issue 
more in depth.
    Representative Berman. I just have to leave about 3:45.
    Chairman Sessions. That will be fine. You can stay as long 
as you like. You are interested in this issue, and I think it 
would help us as we discuss it.
    Chairman Sessions. We have a panel now, our second panel. 
We have both governmental officials who have firsthand 
knowledge of how consent decrees can bind future Government 
officials and expert witnesses.
    Our first witness is Alabama Attorney General Troy King, 
who is doing a terrific job in the State. He served as 
Alabama's Attorney General since 2004. It was a position I held 
for 2 years before being elected to the Senate, and he replaced 
former Attorney General William Pryor, who is now a U.S. 
circuit judge.
    Our second witness is Judge Nathaniel R. Jones. Judge Jones 
served on the Sixth Circuit Court of Appeals and is currently a 
partner with the law firm of Blank Rome LLP in Cincinnati, 
Ohio. Judge Jones has dealt with consent decrees throughout his 
career as a Federal appellate judge, as a litigator on behalf 
of the NAACP, and as assistant general counsel to the National 
Advisory Commission on Civil Disorders.
    Our third witness is Professor Ross Sandler. I believe you 
have been referred to by Senator Alexander. Professor Sandler 
is a professor at New York University School of Law and the 
director of its Center for New York City Law. He was one of the 
authors of ``Democracy by Decree: What Happens When Courts Run 
Government,'' the book upon which the Federal Consent Decree 
Fairness Act is based.
    The fourth witness is Tim Jost. Professor Jost is the 
Robert L. Willett Family Professor of Law at Washington and Lee 
University. Professor Jost has published numerous scholarly 
books, articles, and book chapters on health law and policy and 
comparative health law and policy. He also published a Law 
Review article on Federal consent decrees. We are glad you are 
with us.
    Our fifth witness is Dr. Michael Greve. Dr. Greve is the 
John G. Searle Scholar at the American Enterprise Institute for 
Public Policy Research and the director of AEI's Federalism 
Project. He has written extensively on the problems underlying 
Federal consent decrees. Dr. Greve also served as the director 
of a public interest law firm.
    Our final witness is Ms. Lois Schiffer. Ms. Schiffer is 
currently an attorney in private practice with Baach, Robinson 
& Lewis. She is also a former Assistant Attorney General with 
the U.S. Department of Justice's Environment and Natural 
Resources Division. During her time as an Assistant Attorney 
General, Ms. Schiffer personally approved hundreds of 
environmental consent decrees.
    So I will ask the panel to limit your opening remarks to 5 
minutes so that we can have time for a full round of questions. 
Without objection, your full testimony will be placed in the 
    All right. Attorney General King, we are delighted that you 
are here. I know the State of Alabama has a number of decrees 
in place. I do remember thinking when I was elected Attorney 
General in 1994 that we needed to end the Reynolds case. And I 
got our team together, and I said, ``This thing needs to be 
ended. The lawyer fees are killing us. Why can't we get it 
settled?'' I understand it is not settled yet. It was already 
old when I started to try to fix it.
    But, at any rate, we would be delighted to hear your 
remarks in general on this entire situation and how you view 
it. Attorney General Troy King.

                      MONTGOMERY, ALABAMA

    Mr. King. Thank you, Mr. Chairman. My name is Troy King. I 
am the State Attorney General for Alabama. Thank you for 
inviting me to address this Subcommittee today and to share my 
State's experiences with consent decrees and my support of S. 
489 as a vehicle to address some of the abuses that accompany 
many consent decrees.
    The Federal Consent Decree Fairness Act will provide a much 
needed change in the law regarding consent decrees. The Act 
will make it easier for State governments to end oppressive 
consent decrees by taking the policymaking discretion away from 
Federal judges and returning it to those who have been elected 
or appointed to make those decisions.
    I will share with you today three of the most egregious 
examples that have the greatest impact on our home State of 
    First I will talk about Reynolds v. McInnes, which is the 
case you just mentioned. It is a case where the costs continue 
to soar as the plaintiffs' lawyers continue to frustrate their 
own client's objectives in this case, and it is due to the 
entry by the State of Alabama into a consent decree.
    Second is the case of RC v. Walley with impacts Alabama's 
delivery of child welfare systems and extra consent decree 
activities, the activities the State is being required to 
engage in that are not required by the terms of the consent 
decree and, in fact, are counter to them.
    And third, Wyatt v. Stickney, which involves the State's 
Department of Mental Health and Mental Retardation and the 
changing standards that continue to frustrate the State's 
ability to comply with consent decrees.
    An example of the first oppressive, out-of-control consent 
decree in my State stems from Reynolds v. McInnes. In Reynolds, 
African-American employees and former employees of the Alabama 
Department of Transportation commenced a racial discrimination 
class action lawsuit against the Department of Transportation. 
Governor Jim Folsom, Jr., entered into a consent decree in 
March of 1994 that was originally set to expire in December of 
2000. To date, over four dozen appeals and petitions have been 
filed and the consent decree remains in effect. The Eleventh 
Circuit Court of Appeals recently addressed the obscene amount 
of public funds that have been spent on the Reynolds consent 
decree, saying: ``[T]his unwieldy litigation has been 
afflicting the judicial system and draining huge amounts of 
public funds from the State of Alabama for much too long. The 
amounts are staggering. Fifty million dollars in public funds 
has been spent on attorney's fees alone in this case..bringing 
the total litigation costs to the State of Alabama to more than 
$112 million, and that cost is growing at a rate of around 
$500,000 each and every month.''
    With these funds, every mile of interstate in Alabama could 
have been resurfaced--
    Chairman Sessions. Just as a point, since the plaintiffs 
are prevailing presumably by obtaining orders, the State has to 
pay both their own lawyers and the plaintiff lawyers also?
    Mr. King. I was coming to that, Mr. Chairman.
    Chairman Sessions. All right.
    Mr. King. In fact, under this consent decree we pay whether 
they prevail or not. We pay for every minute they spend on this 
case, whether it is a worthwhile endeavor, whether they 
ultimately prevail or not. It is an example of the 
oppressiveness of consent decrees where people do things they 
would not ordinarily have a Federal right to obtain, but they 
agree to do it by striking a bargain that is to the detriment 
of the people of my State.
    The lead plaintiff in this case, you may be interested to 
know, Johnny Reynolds, died shortly after receiving long-
awaited settlement proceeds. His attorneys, on the other hand, 
have long ago grown rich, and the people of Alabama continue to 
grow more and more disillusioned with the system that could 
allow this to occur. The court addressed the long-term effect 
of this agreement saying: ``The promise of fees for time spent 
without regard to the outcome of a motion or appeal in a case 
that apparently has endless potential for dispute may be the 
kerosene that has fueled the litigation fires, which have raged 
out of control in this case.''
    You see, when you award attorney fees for every minute 
spent by the plaintiffs in a case, regardless of whether their 
claims are frivolous, regardless of whether they have an 
entitlement to them, it is an example of a contract provision 
that successive administrations have been helpless to alter, 
even as its unsoundness becomes more and more evident even to 
the most objective and detached observer. The Federal Consent 
Decree Fairness Act will provide a vehicle for modifying such 
provisions, provisions that are later found to be unworkable or 
unsound after they have been approved.
    Another example of the difficulties that exist in modifying 
consent decree provisions can be found in the Reynolds case 
again. The Reynolds consent decree contained a no-overlap 
provision that governed the measurement of candidates' job 
    Despite a good-faith effort by both parties to comply with 
the provisions of this part of the consent decree, the 
defendant were forced to pay millions in finds as the 
plaintiffs blocked, litigated, and otherwise frustrated the 
achievement of compliance. After the defendants had paid over 
$4.5 million in sanctions for noncompliance, the court agreed 
that these provisions were unworkable and removed them from the 
consent decree, yet there has been no refund of these monies to 
the State for the monies they were required to pay to achieve a 
result that was completely unworkable in the beginning.
    I will stop there. I see the red lights are on, but, 
unfortunately, I could go on and on and on.
    [The prepared statement of Mr. King appears as a submission 
for the record.]
    Chairman Sessions. Thank you.
    Judge Jones, it is a delight to have you, and we would be 
pleased to hear your comments at this time.


    Judge Jones. Thank you, Mr. Chairman, and members of the 
Committee. It is my pleasure to offer this testimony on this 
important legislation.
    My name is Nathaniel R. Jones, and I, as has been 
indicated, served for 22 years as a member of the Sixth Circuit 
Court of Appeals, and prior to that time, I served as general 
counsel of the NAACP for some 10 years, and for the preceding 
years I served in various positions, including assistant 
general counsel to the National Advisory Commission on Civil 
Disorders. That was a commission appointed by President Johnson 
to study the cause of civil disorders, and in that report, 
which I commend to your reading, along with the other reading 
that has been proposed to you, you would have an appreciation, 
Mr. Chairman, of the reasons why remedies that were formulated 
by Congress came into being and remedies that were formulated 
by State legislature came into being to correct the causes of 
frustration and the anger and the disruption that was costing 
our taxpayers millions and millions of dollars in the period of 
the 1960's and prior to that.
    The legislation that has been proposed, in my judgment, is 
overdrawn, and it will have the effect of applying a wrecking 
ball to a judicial process that has been invaluable in 
resolving very knotty and contentious legal problems and social 
problems that we have in this country.
    There is no problem that needs fixing in the way that is 
formulated by this legislation. The unanimous 2004 Supreme 
Court decision in Frew v. Hawkins directed district courts to 
do, in effect, what they have been doing, and that is, pay 
close attention and give deference to the local officials who 
were bringing claims of repressive conduct and the effects that 
they were feeling from these consent decrees. The various 
claims that were being filed were already being carefully 
monitored and scrutinized by Federal district courts. Rule 23 
requires a procedure for dealing with claims that were resolved 
by agreement, and before a Federal court can agree--before it 
will enfold and adopt into a consent decree an agreement, the 
court has to hold in the first instance a preliminary hearing. 
It must determine before it issues a preliminary approval 
whether or not the agreement is fair, whether it is adequate, 
and whether it is reasonable. And then following in that 
process, all members of the class are notified, and they are 
invited to attend and participate in a fairness hearing. And at 
that time, they may set forth their views with regard to the 
adequacy of the agreement.
    Upon the approval of that agreement, the court then will 
include into a court decree and it will be then thereafter 
enforced. Now, if there are differences with regard to it over 
time, if there are problems in connection with it, any party, 
including Governors, mayors, or any other State officials, may 
apply to the court for modification. And this happens all the 
time. I can cite cases. I sat on 25 cases alone in the Sixth 
Circuit in which there were challenges to consent decrees. And 
what we looked at very carefully was whether or not those 
agreements were fair, were they adequate, and were they in need 
of any kind of reform or modification. And we took a very 
careful look to see whether the district courts had accorded 
due process to the officials who were protesting and claiming 
that they were not being treated fairly.
    I must say very candidly that there were cases in which I 
wrote the opinion to reverse and remand the case to the 
district court with direction to hold a hearing and ensure that 
all of the T's were crossed and all the I's were dotted. So 
there is a process in place, and we do not need to have a 
cannon to go after a gnat.
    There has been a lot of testimony here about the Reynolds 
case. I am not familiar with the case to the extent that the 
Attorney General is, but I noticed that a reference was made to 
the Eleventh Circuit. Well, why didn't the Eleventh Circuit 
reverse it? There must be something wrong. The fact of the 
matter is that the parties agreed to the consent decree. They 
agreed to the penalties that were set forth that the district 
court applied when there were breaches. The State acknowledged 
that it was in violation of the consent decree.
    So given that situation, the court of appeals' hands were 
fairly tied given that we had an agreement and that the parties 
had agreed to the sanctions that were contained in the order.
    I see the light is on, but I would suggest and I trust that 
you will read my full testimony because I discuss in greater 
detail the reasons why this legislation is most inappropriate.
    [The prepared statement of Judge Jones appears as a 
submission for the record.]
    Chairman Sessions. Thank you, Judge Jones.
    Professor Sandler?

                            NEW YORK

    Mr. Sandler. Thank you very much. I am very pleased to be 
here, Senator Sessions, and to speak on this panel.
    I come at this in a rather unique way. I was an attorney 
for 10 years at the Natural Resources Defense Council and 
litigated these cases. I then became a Commissioner in the City 
of New York, where I became a defendant in the cases. So I have 
been on both sides.
    Chairman Sessions. The Natural Resources Defense Council, 
that would be a pro-aggressive environmentalist group. Is that 
    Mr. Sandler. Yes, sir, and an effective one, and still a 
very effective one.
    I then became a law professor, and one of the areas I was 
interested in was the rules that governed the remedies of these 
institutional reform cases.
    The Federal Consent Decree Fairness Act allows courts to 
protect rights but, otherwise, let's elected officials run 
State and local government. Bargains written into consent 
decrees, the Act makes clear, are not contracts but are 
judicial remedies to be measured against Federal law. This 
prevents a hobbling of State and local officials by prior 
bargains, a situation that has been described here several 
times, such as that in Tennessee described by Senator 
    The major criticism of the Act is that it would lessen the 
capacity of Federal judges to protect rights. Plaintiffs would 
not enter into consent decrees. Defendant officials would avoid 
complying with Federal law. Both of these criticisms are easily 
refuted. Consent decrees will still be used for several 
powerful, compelling reasons.
    First, when parties do not consent--and none of the people 
have spoken to this--the rules that govern remedies tightly 
limit what a judge can order. Judge-made remedies are limited 
to correcting proven violations. Judges may not stray from that 
    For example, plaintiffs might prove that special education 
students have been deprived of adequate transportation. The 
judge under the rules could only order a remedy to correct the 
transportation violation. In a consent decree, however, the 
parties might expand the decree. They might include such items 
as school accessibility and classroom activities. This is a 
powerful incentive for both plaintiffs and defendants. It 
allows more give and take, expands the potential for 
compromise, and offers greater opportunities to achieve long-
term goals.
    But there are other compelling reasons as well. Consent 
avoids delay. It accelerates the time when defendants become 
subject to contempt proceedings. It avoids the expenses and 
uncertainties of trial. It allows plaintiffs to begin getting 
fees. It prevents appeals.
    But having said that, would officials use this Act to avoid 
complying with the decrees that are entered? Officials today 
fail to comply with consent decrees, and officials will no 
doubt fail in the future? The relevant question is this: Will 
the Act make it more difficult for judges to compel compliance? 
I believe that the Act will make it easier to compel 
    First, the Act does not affect any of the existing 
enforcement tools. Judges will still be able to hold officials 
in contempt, fine officials and their agencies, incarcerate 
recalcitrant officials, compel explanations and reports, 
appoint monitors, and hold officials up to public scorn as 
    Building on these powers, which are untouched by the Act, 
the Act actually improves the potential for enforcing 
compliance since it is tied so closely to Federal law and not 
to the bargains.
    First, State and local officials will still have to have a 
program to comply with Federal law. It is, with all due 
respect, demagoguery to say that this will blast apart the 
ability of courts to enforce. It will not be enough for 
officials to say the old plan failed. They must still satisfy 
the judge that they will remedy existing violations of Federal 
law. And this is a helpful change since it allows officials to 
quickly adjust remedial programs to meet contemporary 
challenges and new circumstances.
    Second, in order to terminate court supervision, the State 
or local officials must be able to overcome plaintiffs' proof 
that the court is still needed to prevent future violations. 
Officials not in compliance will be faced with the certainty of 
judicial hearings and a finding that they are violators.
    Third, the Act requires the judge to keep in sharp focus 
the Federal rights that the plaintiffs may enforce in court. 
This gives judges a firmer basis to compel defendants to meet 
their obligations.
    Now, there are areas that might be improved in this 
statute, and I would like to mention a couple. I think that the 
Committee may consider the 90-day limitations. It may be too 
short. The provisions about Special Masters might be looked at 
and whether they are as important as others. The application of 
the Act to decrees where the Department of Justice is the 
primary plaintiff might be looked at, as well as the items that 
Representative Berman brought out, State versus State with 
original jurisdiction of the Supreme Court. They might not be 
appropriate for this legislation. And there are definitions in 
it which might also be looked at. But the important point is 
that the consent decrees can be enforced and the rights will be 
    Now, lastly, some say the consent decree problems 
disappeared with the Supreme Court's opinion in Frew v. 
Hawkins. I wish that were so. David Schoenbrod, my colleague, 
and I have written about that, and the opinion is dictum. It 
does not change the law, and the rules on modification remain 
as arduous and rigid as, in some cases, Judge Jones has even 
mentioned in some of his cases.
    There is still need for Congress to make clear that judges 
are to continue to enforce Federal rights while also making 
clear that State and local officials should be able to rid 
themselves of decrees that are broader than necessary to 
vindicate Federal law and protect rights.
    Thank you.
    [The prepared statement of Mr. Sandler appears as a 
submission for the record.]
    Chairman Sessions. Thank you, Professor Sandler.
    Professor Jost, if you would yield for a moment, Senator 
Schumer has been over consulting with the President on who will 
be our Supreme Court nominee, and he has just arrived.
    Senator Schumer. I would like to let everybody know who it 
is going to be--after 9 o'clock.
    Chairman Sessions. Senator Schumer is a very active member 
of our Court Subcommittee and Judiciary Committee, and I would 
be pleased to recognize you at this time for an opening 

                       STATE OF NEW YORK

    Senator Schumer. Well, thank you, Mr. Chairman, and I want 
to thank all the witnesses.
    First, I do want to thank you, Mr. Chairman, for your 
fairness here. We have an equal number of witnesses on both 
sides in a very complicated and difficult issue, and I 
appreciate it.
    Let me say first at the outset, you know, somebody like 
myself who believes that the courts are an important tool to 
enforce people's rights, but at the same time I am a pro-
government guy. I am pro-government. I think governments 
represent people, and we kick them around a lot, but they are 
very important. So you have two sort of worthy groups colliding 
with each other, and I have seen consent decrees do both. I 
have seen consent decrees do miraculous things for people who 
need help. I have also seen consent decrees that have been in 
effect for a very, very long time and sometimes outlive their 
usefulness, and yet it is very hard to get out of them, 
particularly when they are signed in perpetuity.
    So I am very interested in this subject and in this 
hearing, and I do not approach it in a doctrinaire way. I want 
to put my entire statement in the record, and I do not think I 
am going to--although if Jeff is outside, he may want me to 
read it, or we can go on to the next witness. But I would say 
this, a couple of points here, as somebody who understands the 
impetus for the legislation and at the same time understands 
the need for consent decrees to have effectiveness. I would 
make a couple of points that sort of stand out.
    Four years seems awfully short, or 4 years or when the 
highest official who was the party to the agreement, you know, 
when his term or her term expires, that seems even shorter 
still. These consent decrees should not be tied to who is in 
office. They should be tied to the Government, which has long-
term and effective interests here. So that part of it I think--
those two parts I think should be re-examined.
    The 90 days, the court has to rule on the motion within 90 
days or the consent decree is automatically nullified. That 
seems if the pendulum may be too far in one direction, that 
swings the pendulum already too far in another direction.
    So I would say those are two parts of the bill that I think 
go too far, but that does not mean that some kind of compromise 
could not come about. I don't know who the sponsors are in the 
House. As I look at the list of sponsors here, they tend--I saw 
Ben Nelson is the only Democrat--and Mark Pryor, okay. I think 
you could probably, I would say to my friend from Tennessee, 
you might get broader support by some modifications. I am not 
committing to that, but it is something that I would be open 
    I think I will leave it at that. I have a statement, but I 
will leave it at that. Since I was late, I do not want to bore 
people with it. This is a real problem, and yet there are lots 
of other real problems out there consent decrees tend to help 
with. And I think, at least in my experience in New York City, 
Professor Sandler, it is the ones that have been on the books 
for 15 or 20 or 25 years that seem to be--you know, they sort 
of outlive their usefulness. I have done a lot to help the 
homeless, and yet I have seen the homeless consent decrees in 
New York used for purposes that went way beyond the intention, 
I think, of what they were supposed to do after a period of 
    So this is very interesting. First I want to salute our 
Chairman in bringing the issue up. I want to salute Mr. 
Alexander for putting this together. As I said, I think it goes 
a little too far in one direction, but maybe there is some kind 
of compromise that after a certain longer period of time, maybe 
10 years, an ability to re-examine the consent decree in a way 
makes it a little easier to do that than now. If the judge is 
immutably on one side or if the plaintiffs obviously say that 
is our only interest, you may need some pushback a little bit.
    With that, Mr. Chairman, I thank you.
    Chairman Sessions. And we will put your full statement in 
the record.
    Chairman Sessions. Professor Jost, we would be glad to hear 
your observations at this time.

                      LEXINGTON, VIRGINIA

    Mr. Jost. Thank you very much, Mr. Chairman and Senators.

    In addition to qualifications that Mr. Sessions presented, 
I also have served as an employee of local government, as an 
appointed State official, and have also done a great deal of 
work on the legal systems of other countries, particularly the 
very activist roles the German courts play in health insurance 
in that country. So if anyone wants to engage in a comparative 
discussion, I would be happy to talk about what other countries 

    If enacted, S. 489 would vitiate the enforcement of four 
decades of Federal legislation, including the Voting Rights 
Act, the Americans with Disabilities Act, the Nursing Home 
Reform Act of 1986, and would not only block private parties 
from enforcing these laws, but would also tie the hands of the 
Department of Justice by largely eliminating consent decrees as 
a means of settling disputes.

    As Senator Alexander has just told us, this bill has two 
primary impetuses. The first is Professors Sandler and 
Schoenbrod's book, ``Democracy by Decree.'' I have read this 
book, and it seems to me it has two fundamental objections to 
consent decrees. First, they can be messy, they can be 
expensive, they can take a long time to wrap up, and they do 
not always achieve their goals. This is true, of course, with 
every effort to implement a complex government program, with or 
without consent decrees.

    As Congressman Blunt, one of the House sponsors of this 
legislation, admitted at the recent AEI seminar, ``I really 
think this is more about inactive public officials than about 
overly active judges.'' But the problem of irresponsible 
government officials will not be solved by getting rid of 
consent decrees. In all likelihood, it will, rather, get worse.
    Second, if you read Professors Schoenbrod and Sander's 
book, they argue that consent decrees are used to implement 
``soft rights,'' by which they mean the rights created by all 
of the landmark statutes passed by this body over the past 40 
years to assure all Americans clean air, safe drinking water, 
basic medical care, and freedom from invidious discrimination. 
Their fundamental problem, that is, is not with the courts. It 
is with Congress. They first begin by talking about Congress 
and then move on to talk about the courts.
    If you agree with them that Americans should no longer 
enjoy these rights, take away the rights, but don't do it sub 
silentio by limiting the remedies.
    The second factor driving this legislation, I believe, is 
the situation of the Medicaid program in Tennessee. Last year, 
the Federal Government spent over $5 billion Federal taxpayer 
dollars in Tennessee on Medicaid. For every dollar Tennessee 
spends on its TennCare program, the Federal Government spends 
two. It is not unreasonable to expect Tennessee to comply with 
Federal law in spending these Federal taxpayer dollars.
    The TennCare program is bound by four consent decrees to 
which it agreed to correct violations of the Federal Medicaid 
law. In 2003, current Governor Bredesen personally renegotiated 
all these decrees. He stated at that point that the negotiated 
changes ``put the State back in the driver's seat.'' The former 
director of TennCare testified in court 2 weeks ago that 
Governor Bredesen was heavily involved in renegotiating these 
consent decrees in 2003, that the State got most of what it 
wanted in those negotiations, and that the consent decree is 
not to blame for TennCare's mushrooming costs. Now he has 
decided that it is no longer convenient to comply with these 
decrees, and this legislation would free him from those 
    I come from Virginia, and in the Old Dominion we still 
believe in honor. If you sign an agreement in court, you live 
by that agreement. You do not try to walk away from it. And I 
believe that is what Tennessee is trying to do here.
    It is vital to understand that the proposed legislation 
only limits the effectiveness of consent decrees, not of 
litigated decrees. Consent decrees save our country vast sums 
of money in legal costs. They cut dramatically the need for 
discover, pretrial preparation, and trial time. And perhaps 
even more importantly, as Professor Sandler acknowledged, they 
allow both parties, including the State, to shape the decision 
of the court.
    Two years ago, Tennessee stated to the court that the 
modifications Governor Bredesen agreed to were designed to 
``enable the State to achieve significant savings'' and were 
``materially advancing the State's ability to stabilize and 
preserve the TennCare program.''
    The State represented to the court that that consent decree 
was not just good for the plaintiffs, it was good for the State 
as well. A fully litigated decree could have had a very 
different effect.
    I disagree with Professor Sandler, my colleague, that 
consent decrees will still be entered into if this legislation 
is adopted. I believe that no responsible plaintiff's attorney 
will enter into a consent decree again with State or local 
government. Most cases now that are settled by the consent 
decrees would have to be litigated to judgment or else the 
plaintiff would risk the possibility of the decree simply 
disappearing as soon as a new public official was elected or 4 
years elapsed.
    The Supreme Court unanimously last year in Frew v. Hawkins 
recognized a flexible standard for modification of consent 
decrees. If Tennessee wants yet more modifications in this 
consent decree, it can ask the courts to modify them. It is, in 
fact, doing that right now as we speak. The Court is 
reconsidering that consent decree. Recently, the circuit court 
of appeals reversed a decision of the district court rejecting 
a modification. There is not a problem here that needs to be 
    If this bill is enacted, however, it will cause untold new 
problems and impose significant litigation expenses on the 
Department of Justice, the beneficiaries of Federal programs, 
and the States. Please vote against letting this legislation 
out of Committee.
    I would also like to ask to submit to the record my 
response to Senator Alexander's article that appeared a week 
later in the Legal Times. I recognize that I do not have his 
standing, but I would like for you to read my humble response.
    Thank you.
    Chairman Sessions. We will make it a part of the record.
    [The prepared statement of Mr. Jost appears as a submission 
for the record.]
    Chairman Sessions. Dr. Greve?


    Mr. Greve. Thank you, Mr. Chairman. I too, for obvious 
reasons of professional self-interest, want to start with the 
AEI event that has been mentioned repeatedly several weeks ago 
where Senator Alexander and Congressman Blunt were kind enough 
to appear, and both of them made what I think is the crucial 
point. This is not about restraining activist courts. This is 
about restoring political responsibility, and I think that is 
exactly the right analysis.
    What is the crucial problem here? Whence this flight from 
political responsibility? And I think the answer is the 
proliferation of entitlement statutes over the past three 
decades. The way it works is Congress gives States or local 
governments some money, and in exchange imposes some 
conditions, and it then makes the conditions privately 
enforceable. And as it turns out, that structure dilutes 
political responsibility up and down the chain.
    The local governments or the recipients, the State 
governments that receive these funds, usually have their own 
incentives to expose themselves to consent decrees, and tons of 
these so-called consent decrees are, in fact, collusive. There 
is decision after decision after decision where Federal judges 
and justices have complained about that tendency, and the 
reason and the incentive is perfectly obvious. If you have to 
run these programs, you want to shield your particular program 
and your budget from State legislative oversight. And the most 
convenient way to do that is to say, hey, we are under a court 
order, we have to spend this money.
    Congress is off the hook under these conditions because if 
something goes wrong at the local level in consequence of a 
consent decree, Congress can always complain about activist 
courts or ``We're shocked,'' shocked to learn that these local 
governments don't comply with our conditions.
    The court is off the hook because it can always say, ``What 
do you mean I am being activist? I am just doing the will of 
the Congress here.''
    And the plaintiff groups are off the hook because they can 
always say, look, we won these entitlements in Congress, we won 
them fair and square; it is only a matter of simple justice 
that we now get to enforce them.
    And so at the end of the day, nobody is responsible. Nobody 
has an incentive to cut through all of this.
    I entirely agree with Congressman Berman that at the end of 
the day, what is desirable is a change in the underlying law, 
but I disagree respectfully with the contention that this is 
not a very, very good first step that deals very, very 
effectively with a particularly extreme example of outlier of 
entitlement statutes. And the reason why I am saying that is 
that what consent decrees do is that they allow these far-
reaching remedies that intrude very, very deeply into the 
political management of a State or local government without any 
finding of any violation of any law. And what this bill 
blissfully and mercifully does is it gives a chance not to 
relitigate the original question because it has never been 
litigated before, but finally focus the court's attention and 
the parties' attention on the crucial question, which is: Is 
there an underlying right or was there an underlying right that 
was violated in the first place, yes or no?
    I would finally add that it is either Congress that fixes 
this program or nobody can. The Supreme Court has over the past 
two decades, two and a half decades now almost, tried to 
address some of the problems of, loosely worded, entitlement 
statutes. To summarize the jurisprudence very, very briefly, it 
is Congress may expose State and local governments to suit, but 
only if it makes its intention to do so absolutely clear in 
this language of the statute itself. The purpose of that 
jurisprudence is precisely the purpose of this bill. It is to 
focus responsibility. The court wants to make Congress say, 
``Do you really mean to do this, yes or no?'' It wants to give 
State and local governments a chance to know and realize in 
advance what they are in for when they subscribe to these kinds 
of programs so that at the tail end they do not have an excuse 
    The effort to end or terminate consent decrees or to allow 
State and local governments to move for termination is fully 
consistent with that jurisprudence, and it acts at a front 
where the Supreme Court itself has been incapable of acting. 
Everybody in the literature agrees, it is very, very hard to 
terminate these consent decrees, very, very hard for appellate 
courts and the Supreme Court to do anything about it.
    Thank you.
    [The prepared statement of Mr. Greve appears as a 
submission for the record.]
    Chairman Sessions. Thank you.
    Ms. Schiffer?

                  OF JUSTICE, WASHINGTON, D.C.

    Ms. Schiffer. Thank you, Mr. Chairman, for the opportunity 
to testify today about the grave problem that S. 489 poses for 
effective environmental protection in our country. I am Lois 
Schiffer, currently an attorney in private practice at Baach, 
Robinson & Lewis in Washington, D.C., and from 1994 to 2001, 
Assistant Attorney General in charge of the Environment and 
Natural Resources Division in the U.S. Department of Justice. 
That division is responsible for working with U.S. Attorney's 
Offices on virtually all Federal civil and criminal 
environmental enforcement actions under the laws Congress has 
passed to protect against and clean up pollution.
    I have approved and signed literally hundreds of consent 
decrees and have negotiated many. A number have been in cases 
against State and local governments and would be directly 
affected by S. 489. That bill, if enacted, has fatal flaws that 
would undercut environmental protection in this country.
    First, despite what Mr. Sandler says, the bill will 
virtually eliminate use of consent decrees and environmental 
enforcement actions against State and local governments because 
no responsible Government attorney or citizens group would 
enter an agreement where the other party, a defendant State or 
local government, could decide not to keep its word and then 
could tie the agreement up in litigation over termination in 4 
years or less.
    Second, S. 489 would thus eliminate one of the essential 
tools for implementing and enforcing our Nation's environmental 
laws. Since Congress has through law committed to the American 
public clean water, clean air, safe drinking water, and other 
protections, Congress itself should be dismayed. Once it 
appears that a State or local government has failed to comply 
with an environmental law, everyone benefits if attention is 
turned to how to fix the problem rather than litigating over 
whether and how the problem occurred. That is why so many 
environmental enforcement actions, whether brought by the 
United States, by States, or by citizens groups as specifically 
recognized in the environmental laws, turn to settlement 
discussions and consent decrees. The remedies that the 
enforcers seek and that the State or local governments agreed 
to may take long periods of time to implement, often because 
extensive work is involved. I will outline a few useful 
examples, then make four quick points about the problems of S. 
489 that the examples illustrate.
    First, sewage treatment cases. In New Orleans, the 50-year-
old system for collecting sewage worked so poorly that when it 
rained, raw human sewage ran in the streets. Not very pleasant. 
The United States and the New Orleans Sewerage and Water Board 
entered into a consent decree--I negotiated part of it myself--
that committed New Orleans to take specific steps over 11 years 
to build a new sewage collection system. The massive nature of 
the project dictated the length of the decree.
    We negotiated a similar consent decree, I am sure you will 
be interested to know, for wastewater collection and treatment 
in Jefferson County, Alabama, which is still in place, and I am 
sure, Senator, that your constituents are happy not to have 
sewage improperly treated.
    In Wayne County, Michigan, which covers Detroit, the United 
States and the county just returned to court to ask for 
termination of a consent decree after 11 years because the 
county had essentially fixed the problem, and that is an 
example of how the system works. People know how to get decrees 
terminated when they have lived their useful life.
    Finally, this past February, the Federal court in 
Tennessee--Senator Alexander, you will be particularly 
interested in this--signed a consent decree entered into as 
plaintiffs United States, the State of Tennessee, and the City 
of Knoxville--they were the plaintiffs--and the Knoxville 
Utilities Board, an independent agency of the city, was the 
defendant, requiring the board to take specific steps to 
analyze and fix sewage overflows. The work will cover 12 years, 
and the press release states it is estimated to cost $530 
million. Of necessity, that work is going to take a long time. 
It is important to note that it was Senator Alexander's State 
as the plaintiff.
    A second type of example, the consent decree to restore the 
Everglades, which was entered into after a lawsuit was brought 
in 1992, and there, there is great commitment by the United 
States, the State of Florida, and the South Florida Water 
Management District, as well as this Congress and the present 
Governor of the State, to really clean up and restore the 
Everglades. It is a very long-term project and of necessity 
that consent decree has to run a while.
    All of these would be stabbed in the heart by S. 489, and I 
will conclude with four quick reasons.
    First, this bill would mean that the Justice Department and 
citizens groups would stop entering into consent decrees to 
resolve environmental cases brought against State and local 
governments since complying with the laws passed by Congress 
can take time, as I have indicated. A law that means consent 
decrees may be terminated after a short time eliminates them as 
a useful tool.
    Second--and I will be quick--this bill would increase, not 
reduce, the amount and scope of litigation in our courts with 
greatly added expense and grave burden on resources of the 
Justice Department and U.S. Attorneys, State governments that 
both bring enforcement cases and defend them, local governments 
that would face trials, not settlements, and Federal courts. 
This is also completely contrary to efforts in every Federal 
court to encourage cases to settle and is encouraged by a law 
of this Congress, 28 U.S. Code 651, the Alternative Dispute 
Resolution Act.
    Third, the bill will seriously set back the enforcement of 
environmental laws passed by this Congress and give us all 
dirtier air, water, and land.
    And, finally, the bill is completely unnecessary because 
particularly under the recent Supreme Court decision in Frew v. 
Hawkins that you have heard about, State and local governments 
and courts already have good tools to address the concerns it 
seeks to remedy.
    Thank you.
    [The prepared statement of Ms. Schiffer appears as a 
submission for the record.]
    Chairman Sessions. Thank you very much. Those are excellent 
discussions that we have had today, and we thank you for it. 
Each one of you brings an important perspective to the matter.
    It just strikes me that prior to the common nature of 
consent decrees, if a community polluted the water and were 
sued, they had to pay. And if they did it again, they would get 
whacked again, and then get whacked again, and pretty soon a 
jury or the judge would really whack them if they failed to fix 
    But I as a United States Attorney for 12 years did enter 
into and enforce decrees that probably were helpful in the 
sense that it established a time period to accomplish a goal, 
Ms. Schiffer, that you mentioned it might take more than 4 
years to accomplish. But the problem is, what if after 4 years 
somebody has solemnly agreed to a plan and it is plainly 
obvious that the plan would be better if it were modified? What 
is the current standard of review by a court to establish that?
    Ms. Schiffer. May I respond, Senator?
    Chairman Sessions. Yes.
    Ms. Schiffer. Well, first, of course, if it is clear that 
it needs to be changed--and the Everglades is a perfectly good 
example of something where everyone agreed after a while they 
had learned more and it needed to be changed--the first thing 
is to go back to the parties on the other side and say, ``We 
think this should be changed.'' And often those agreements can 
be worked out in that fashion.
    Chairman Sessions. Sometimes, but a great power rests in 
the plaintiff's hands. Correct?
    Ms. Schiffer. Well, that is if you can have agreement, and 
if not, it has certainly been the standard before the Frew case 
and reiterated in Frew that if there is a change in 
circumstances, a party can go back to court and say there is a 
change of circumstances, the consent decree should be modified. 
And I would add that Frew specifically urges that deference 
should be given to elected officials, to State and local 
governments, in looking at whether there should be 
modifications to consent decrees.
    But I would also note that even apart from the consent 
decree issue, what we are really talking about here is a set of 
pollution control obligations that are imposed on State and 
local governments by the laws of this Congress. So that even 
without the consent decree, the obligation on the local 
government to, as you say, fix the pollution problem does not 
go away.
    But the courts have shown themselves perfectly capable, if 
there is a change of circumstances, if people find new 
technologies, if there is a better, more efficient way to do 
it, to modify the consent decree.
    Chairman Sessions. Well, in certain circumstances--and I 
think the U.S. Department of Justice probably has a better 
reputation as a plaintiff than most. Maybe others--or, 
Professor Sandler, would you like to comment on what it takes 
to amend some of these decrees?
    Mr. Sandler. Yes, I would very much like to answer that. 
Thank you.
    The leading case is called Rufo, R-u-f-o, and it requires 
that the parties seeking the modification--usually the 
defendant--has to show unforeseen circumstances, not just 
change of circumstances, as Ms. Schiffer said, but unforeseen 
circumstances; and, secondly, that the modification presented 
to the court must be suitably tailored, that is to say, a 
minimum change necessary to essentially preserve the bargain. 
And that is why it is so difficult to get modifications. So let 
me give you an example.
    In the 1970's, the New York City Housing Authority was 
evicting tenants in a way that was unconstitutional, so there 
was a lawsuit brought, and a consent decree was entered which 
supplied a very elaborate year-long process to evict, far 
greater than what the local statutes required. Twenty years 
later, crack cocaine is devastating parts of the Housing 
Authority. Some tenants were using their apartments to sell 
cocaine, so the tenants and the Housing Authority said, ``We 
have got to get rid of these people if they are convicted of 
using their apartments for selling cocaine. Let's use the quick 
eviction proceeding to sustain the safety of the Housing 
    Plaintiffs' attorneys said, ``Oh, no, we have this 22-year-
old consent decree. You have to take a year to evict people.'' 
And so they had to have a trial before Judge Prescott. And what 
were the issues? Was crack cocaine unforeseen when they had 
heroin 22 years later? So they had experts testify as to how 
unforeseen crack cocaine was or whether it was not or whether 
it was the same; and, secondly, they had experts come and 
testify as to whether or not there were other suitably tailored 
things to do other than evict, such as hire more police. And so 
you had a battle of experts. Three days of hearing, 55 pages of 
opinion, 18 months, the court finally says it is okay to evict 
cocaine sellers who would use their apartments to sell.
    During that time, the tenants were so beside themselves 
with what their lawyers were doing, they hired another lawyer 
to attack the old lawyer. And this is a typical--this is what 
can happen under the current rule, which is why this 
legislation is so important, because it says, wait a second 
here, the measure of Federal court jurisdiction is the laws 
that Congress passes and the Constitution. It is not the 
private bargains that get written into these consent decrees.
    I wish Representative Berman was here. He talked about the 
Jose P. case, with which I am enormously familiar. He says it 
cost a lot of money. One of the reasons it cost a lot of money 
is that Federal law says every child is entitled to an 
evaluation by one person. New York in 1979 said, well, let's do 
three people; in other words, three times what Federal law 
requires. That is still the requirement. And when the city 
tried to get out from under that, the social worker union, 
which is one of the three groups, intervened in the case and 
said, ``You have to keep hiring social workers, whether you 
want to or not, because the consent decree says you have to.'' 
And then went back to Federal law and said only one, but the 
court said, ``I am sorry, a bargain is a bargain.'' And in the 
words of my colleague here, honor it. But consent decrees 
should not be about honor. You honor them when you sign them 
for sure, but the measure of Federal court jurisdiction is what 
the Federal laws require, what Congress passes, and what the 
Constitution--and those other bargains hobble elected officials 
and subsequent officials who are trying to manage these very 
complicated programs, social programs and other programs on a 
day-to-day basis within real budgets and with real choices, and 
the consent decrees close in on the elected official and 
prevent them from doing their job.
    And, lastly, I would like to just object, if I could, to 
the discussion about treatment plants, with which I am also 
very familiar. Of course, it takes a long time to build a 
treatment plant, and consent decrees under this statute would 
not be terminated. You would still have to comply with the 
Water Act. And if you could do it without a treatment plant, 
God bless you. But if you cannot, you are going to have to 
build a treatment plant. And no statute of this kind of going 
to stop the impact of the Clean Water Act.
    Chairman Sessions. That is something you are familiar with, 
I am sure. I recall, as you talk about the settlements and how 
they are entered into, I know Ms. Schiffer would have a high 
opinion of the Department of Justice and how they do these 
things, but the Attorney General of Alabama, my predecessor, 
met in a secret room with plaintiffs' attorneys and agreed, in 
violation of the Alabama Constitution, to add two new judges to 
the Alabama Supreme Court. And the judge approved this 
agreement without any public hearings.
    Now, there was a hearing to decide whether or not to accept 
the consent decree, but judges tend to accept the decrees 
entered into by the parties on the presumption that they are 
honest, good-faith litigators and they are defending the 
issues. But sometimes things go awry and they are not really 
sound judgments.
    Everybody is willing to talk, and who should I recognize? 
All right. My time has not turned to yellow yet, so I would go 
in this order: Ms. Schiffer, Mr. Greve, and Mr. Jones. And if 
you all would keep your comments sort of brief so I can 
recognize Senator Alexander, because my time will soon be out.
    Ms. Schiffer. I will be very quick. Two points.
    One, Rufo was decided 2 years before Frew. Frew clearly 
said if the State establishes a reason to modify the decree, 
the court should make the necessary changes, and it also said 
deference should be given to elected officials. So he really 
does not have the current standard right.
    Secondly, as to whether it takes place in closed doors, 
under the pollution statutes there are either specific 
requirements in the statutes or in regulations that the court 
have a notice and comment process and an opportunity for the 
public. So under these laws, closed doors does not work.
    Chairman Sessions. Well, it really is a closed door in the 
sense that there is no public Congressional hearings by the 
people who are going to pay the money. It is the lawyers. Ms. 
Schiffer, the Department of Justice is not empowered to run the 
Prichard, Alabama, sewer system. Yet they go into a private 
meeting with a lawyer for the city, and they agree how the 
system should be fixed. That is the way it works, and the city 
and the taxpayers are basically told that this is what the 
court said and you are stuck with it.
    Now, sometimes it is justified. Dr. Greve?
    Mr. Greve. Very briefly. Thank you, Mr. Chairman. Just two 
brief points.
    First, what everybody agrees on in this very contentious 
debate is that we have very little empirical evidence as to how 
these agreements actually work, how many are there, how many 
are terminated. So we do not know very much about the 
termination, but we know about one context in which the Supreme 
Court has laid down much more specific, much more precise 
guidelines with respect to the termination of the decrees, and 
that is school desegregation, which is not covered by this bill 
but I am mentioning it because it is the only systematic 
empirical study that I am aware of in this context. And there 
those standards have done absolutely nothing--nothing--to help 
district courts terminate these desegregation decrees.
    With all due respect, the notion that some abstruse Supreme 
Court standard, whether it is that of Frew v. Hawkins or that 
of Rufo v. Inmates, might conceivably help district courts, 
might have some administrable rule that it actually applicable 
is just erroneous.
    I just want to say one more thing about the modification of 
consent decrees. It is true, yes, you can modify consent 
decrees somewhere along the way, and even that is, in my 
judgment, harder than it ought to be. But what is crucial, the 
crucial difference between the current modification procedures 
and this bill is this: In current modification procedures, the 
only reference point is the working of the remedy itself. 
Nobody ever gets to the question: Do these people, do these 
plaintiffs, are they entitled to be in this court? And are they 
entitled to this remedy? You never get to that because 
everybody is obsessing over, well, we agreed to the remedy 11 
years ago, or whatever, and now it doesn't really work anymore. 
It is completely self-referential over time. This bill would 
change that. That is a good thing.
    Chairman Sessions. Professor Jost and Judge Jones, briefly.
    Mr. Jost. Just very briefly, I would like to reiterate one 
point that Dr. Greve made. Professor Sandler caught himself 
when he said this is a typical situation; then he said this is 
one example. I do not think we know what the typical situations 
are, and I think we could sit here all day with him coming up 
with examples of consent decrees that do not work and some of 
us on the other side coming up with examples of consent decrees 
that did their job and were terminated.
    I guess what I am really worried about is the drop-dead 
solution that is proposed here. A number of people have put a 
lot of pressure on the President to say, okay, one more year 
and we are out of Iraq or two more years and we are out of 
Iraq. And I think he has sensibly said, ``As soon as you say 
one more year or two more years, then it tells people how much 
longer they are going to have us around and then we are gone.''
    One of the consent decree that Professor Sandler refers to 
in his book was a child-care consent decree in Utah that did 
have a 4-year limit. And what happened was that the State 
simply did not do anything for 4 years, and at the end of the 4 
years they said, ``We are out of here.'' And the plaintiffs 
went back in and said, ``No, they have not complied yet. We 
need to have a modification of this consent decree.'' And the 
court did modify it to extend the consent decree, and it was 
upheld by the circuit court of appeals, which said, ``The State 
has refused to comply. They have to comply before we can end 
    And I think that that is the situation we see here. I mean, 
there may be a problem here that needs to be fixed, but I think 
this is a solution that is going to cause far more problems 
than it will fix.
    One final thing, and that is with respect to the 90 days. 
The Judicial Conference has sent this Committee a letter saying 
that the 90-day period is completely unrealistic. Nobody can 
retry a case in 90 days. And so if you are going to have the 
90-day period, you might as well just say it ends at the end of 
4 years because it is not going to be--no one can completely 
retry a case in 90 days. Nobody believes that that is possible.
    Chairman Sessions. Judge Jones?
    Judge Jones. First of all, I have to respond to Dr. Greve's 
comment about school desegregation. I do not know what he has 
been reading, but the landscape is full of cases being 
terminated on the finding of courts that the district has 
reached unitary status--The Columbus case, the Detroit case, 
Bradley v. Millican, the Dayton case, the St. Louis case, in 
which the parties themselves reached an agreement. After many, 
many years of functioning under a consent decree, they 
concluded that they had achieved the objectives of the 
settlement. So in school desegregation cases, we are barking up 
the wrong tree.
    We can sit here and throw out all kinds of horribles about 
consent decrees that may not have been the best or there may 
have been flaws in them. But why don't we talk about the causes 
that led to the litigation that resulted in the consent 
decrees, the conditions that resulted from the default by State 
governments and by municipal governments in meeting their 
obligations to citizens. Why don't we talk about the remedies 
that were provided by Congress that the citizens were availing 
themselves of, and in order to avoid the divisiveness that is 
associated with litigation, they agreed to conclude the matter 
by consent decree.
    Now, if communities wanted to have their dirty linen aired, 
if they want these protracted trials, if they wanted to undergo 
the expense of demonstrating from A to Z what is happening to 
citizens by virtue of the cities and States violating 
Congressional statutes or constitutional requirements, then we 
are going to jam up the courts, and we are going to have a 
horrible bottleneck.
    The courts are now understaffed. The budgets are being 
reduced. All the judges will tell you that they are functioning 
at less than optimum strength. They do not have the personnel. 
The clerk's offices are working part-time. All the requirements 
of conducting full-scale litigation are not being fully funded.
    So we are going to have a situation in which lawyers are 
going to tell their clients there is no point in entering into 
a consent decree. Their clients are going to say, listen, after 
4 years if we have to fight this battle all over again, let's 
just fight the battle now. And the costs of attorneys' fees 
that you have referred to will be nothing compared to what they 
will be if these cases are litigated to the nth degree.
    And what we have tried to avoid--if I may just have a 
    Chairman Sessions. Just one second.
    Judge Jones. When I was litigating the NAACP and during my 
period on the court in which I was supportive of the direction 
the courts were taking to settle and solve cases and to 
initiate alternative dispute resolution strategies, it was to 
avoid the scorched-earth policy, the scorched-earth strategy of 
tearing communities apart by having all this litigation, having 
all these issues aired, getting people together, agreeing on a 
problem, agreeing on a solution, and then asking the court to 
endorse it by a consent decree following its fairness hearing 
in which all parties agree and the public agrees.
    And so I think we are--we may focus on the horribles, but 
let's look at what led people to resort to the courts. And if 
we want people to lose faith in the court system, then I think 
we will go down this road of choking off remedies that are 
clearly made available.
    Chairman Sessions. Senator Alexander?
    Senator Alexander. Thank you, Senator Sessions, and this is 
very, very helpful. I want to make a comment, and then I have 
got a couple of questions that would help me.
    As I listen to this, the 90 days requirements, it depends 
on what side you are on. If you are a Government official, if 
you are a Federal judge, if you are a plaintiff's lawyer, you 
do not like 90 days. But what if you are the Governor of 
Tennessee and every month that goes by that the Attorney 
General has to run from the Federal district judge in 
Nashville, who is trying to run the Medicaid system, up to see 
Judge Jones in Cincinnati to get overruled, every month costs 
$43 million, and $43 million is an $800 pay raise for every 
single Tennessee teacher.
    And Professor Sandler, as was pointed out, said typical and 
then said maybe not typical. I am not sure these are not so 
typical. I think the people of my State, if presented with a 
question of should we want to be the number one State in 
America in the number of prescription drugs that we use, or 
would it better to spend a little less on prescription drugs 
and more on pre-school education, we elect our legislators and 
our Governor to make that decision. And we do not expect the 
Federal judge and a master and a plaintiff's lawyer and someone 
in Washington to make it. That is not what we want out of a 
    And if we are in Los Angeles and if in 1994 we want to ride 
more buses and in 2004 we want to ride more mass transit, we 
want our elected officials to make that decision for us. And if 
between 1974 and 2004 we move from preferring bilingual 
education to English as a second language, we would like to 
have that be responsive to us.
    And I think Judge Jones' point that the courts are busy 
just underscores the fact that when these policy decisions get 
lost in the Federal court today, the judges are really too busy 
to manage them. And they are turned over to faceless 
plaintiffs' lawyers and to well-paid masters who run these 
programs instead of the elected officials.
    So I think fundamentally we are trying to restore some 
balance here and said rights are in the courts and policy is 
for elected officials. And, Mr. Jost, I think you are 
overspeaking a little bit when you say retry the case. This 
case has never been tried. This is a consent decree. This is 
where two people walk into the court and say, ``Judge, this is 
our agreement. Will you approve it?'' There is no retrying 
    And as far as 90 days go, I would be real impatient with 
anything more than 90 days if I knew that I could give my 
teachers an $800 pay raise while we are waiting for the 
Attorney General to yo-yo back and forth between the Federal 
judge in Nashville and the circuit judge in Cincinnati to do 
what I thought I was elected to do.
    Now, let me ask this: Does anyone have any idea how many 
existing Federal court consent decrees there are today or what 
record there is of them? So if, say, I were elected Governor of 
California or mayor of Los Angeles, if I were elected mayor of 
the city of New York, how many consent decrees are there 
governing things that I thought I might be elected to do? And 
how would I find out a list of those Federal court consent 
    Mr. Sandler. That is a wonderful question. When we were 
writing the book, we tried very hard to get that answer. It 
turns out that no one knows.
    Most of the cases are private cases brought against State 
and local government where the Federal Government is not named 
as a defendant, so the Department of Justice does not track the 
    The agencies responsible, say the Department of Education 
for special education or the Department of Transportation or 
EPA, they do not track the cases either because they are not 
involved with them. So the agencies do not know.
    What I found, in order to find out where the cases were, 
the best sources were the organizations of attorneys who bring 
the cases. For instance, if you want to find out where the 
foster care--somebody mentioned a foster care case. There is an 
organization that tracks all the foster care cases across the 
country. It is pretty easy to do because there is only a 
handful of lawyers who bring them. And the organization not 
only tracks them where they are but the status of the case. And 
they print that on the website. So I was able to find out and 
it turns out that virtually every State has foster care 
litigation, and you can track it. But the Department of Justice 
does not know; the court judicial system does not know.
    Senator Alexander. Do you have any guess how many there 
are, in New York City, for example?
    Mr. Sandler. In New York City, hundreds. Hundreds. And 
probably thousands across the country because every State has 
    Chairman Sessions. You mean hundreds in New York City that 
affect some agency--
    Mr. Sandler. Oh, yes.
    Chairman Sessions.--of New York City government.
    Mr. Sandler. Like there is a consent decree on vending 
machines in the schools under Federal law. You know, there is a 
consent decree, as we mentioned, on bilingual education. There 
are multiple consent decrees on bilingual education. Every 
aspect of social programs that Congress enacts, either under 
the Spending Clause or the Commerce Clause, will ultimately 
result in consent decrees.
    Senator Alexander. Could I ask Judge Jones--I see he has 
his hand up. Judge Jones, would there be any objection to 
trying to keep some record of Federal court consent decrees? 
And if there were a way to do it, what would be the appropriate 
way to do it?
    Judge Jones. There are records and they are available.
    Senator Alexander. Where are they available?
    Judge Jones. They are available in the executive office of 
every circuit.
    Senator Alexander. In what?
    Judge Jones. The circuit executive office of every circuit. 
Every year the district judges file reports with the Office of 
the Circuit Executive of the--in my case, the Sixth Circuit. 
And there is an annual report prepared which breaks down the 
dockets of the district judges, the status of the cases, 
whether they are in litigation, in what stage, are they in 
discovery, are they in trial, have they been resolved by 
consent decree, and if the court is overseeing the decree.
    So those are available. They exist. And I am sure every 
circuit by order of--and I think at the Administrative Office 
of U.S. Courts, Mr. Mecham's office, would have those records.
    Senator Alexander. So if I am elected Governor of 
Tennessee, I could go to the Sixth Circuit and say, Please tell 
me every Federal court consent decree which is currently in 
effect which might affect the job I was elected to do?
    Judge Jones. Yes. You could get a report on the consent 
decrees that are under supervision in the district courts, in 
your case the Middle District of Tennessee, or within the Sixth 
Circuit; or you could go to the Administrative Office of U.S. 
Courts and get their annual report, which has the reports, 
compiles the reports of all of the circuits in the Federal 
system. So those numbers are available.
    Mr. Sandler. They just do not tell you what you want to 
know. A decree has been entered. They do not tell you about 
modifications, and they do not tell you anything else about it.
    You know, I think it is important to understand how consent 
decrees get done. A complaint is filed. The first motion is 
either a motion for certification or a motion for preliminary 
injunction or summary judgment. There may never be a written 
decision in the case because those motions generate the 
discussions that lead to the decrees. So a case such as the 
Jose P. case, which Representative Berman mentioned, there has 
not been a written decision in that case in 15 years. Yet the 
parties are meeting every other week adjusting the consent 
decree. It just lives a life of its own.
    So the answer to your question is, Governor, if you really 
want to know, there is no source that will give you the 
information you really want to know.
    Judge Jones. May I just respond to that? This is tit for 
tat. A court speaks through its orders, and I do not know 
whether Professor Sandler has tried any class action cases or 
whether he has been a litigator in this arena or whether he has 
adjudicated these cases. But I can tell you, as a litigator for 
10 years, plus I was Assistant United States Attorney in the 
Northern District of Ohio, I was a Federal court of appeals 
judge for 22 years, and I am now a litigating partner with a 
major law firm in which I am involved in many mediations and 
arbitrations and settlement of class action cases, a judge does 
not enter an order on his own whim. When a case is filed, the 
parties engage in discovery. There is a requirement under the 
Federal rules now that parties must first explore settlement 
    If in the process of discovery it appears that there can be 
settlement, the parties can come to terms, then they will 
submit an agreement to the court for preliminary approval. The 
court will examine very meticulously the settlement against the 
claims that were contained in the complaint. Then if the court 
is satisfied that there has been--that this settlement is arm's 
length and that it is fair and adequate and reasonable, the 
court will then give preliminary approval. Notice will be given 
to all members of the class, and they will be then notified to 
attend a hearing after they comment, either enter an objection 
or agree to opt out of the settlement.
    Then the court schedules this settlement agreement, and it 
is like a town meeting. Anybody can come--the Governor of the 
State, the Attorney General, the cabinet officers, the public 
at large, members of the class--and they can come and the court 
gives them full sway. They can address the issues. They can 
enter their objections. And if the court feels that there is 
merit to their objections, the court will deny the approval. If 
the court feels that the settlement is fair and adequate and 
reasonable, the court will approve the settlement and, 
therefore, enter a consent decree.
    Now, if in a year or two or three or four or 5 years there 
is some aspect about the settlement which is open to question, 
the party can repair to the court and ask the court for a 
hearing to modify and correct or even terminate the settlement 
agreement. And the court will then conduct a hearing and enter 
an order. So it is not the lawyers who run the courts. The 
courts run the courts. And the courts make a decision as to 
whether they are going to grant the relief that is being 
    So it is not accurate to say that private lawyers are 
calling the shots here. They have to petition the courts, and 
the courts make the decision, and they enter the orders, and 
courts speak through their orders.
    Chairman Sessions. Thank you, Judge.
    Do you want to follow up?
    Senator Alexander. My red light is on.
    Chairman Sessions. Attorney General King, as a practical 
matter, have you found it difficult to alter or end the consent 
decrees that have continued for a long time? I do not think you 
got in your opening statement to refer to maybe other cases 
that you do in your written statement. What is the practical 
reality for Attorneys General? And have you an impression of 
how Attorneys General and Governors feel about protracted 
consent decrees?
    Mr. King. I have an opinion about how the Attorney General 
of Alabama and the Governor Alabama feel about them, and they 
feel that they are oppressive. They feel that too often they 
evolve into an exercise where the lawyers frustrate their own 
client's purposes, where you attempt to come into compliance to 
correct past discrimination practices, for example, and the 
lawyers object because in Alabama's case they are being paid 
whether they win or lose, whether what they do is frivolous or 
whether it is helpful. And that creates a scenario by which 
plaintiffs' lawyers are getting rich while the State of Alabama 
continues to suffer, continues to be unable to correct abusive 
    We have instances in Alabama, for example, in a case 
involving the delivery of child welfare services, where we 
agreed to come into compliance with certain standards. There is 
a court monitor in place whose job it is to make sure that the 
State of Alabama does that. We have now brought all 67 counties 
into compliance. We have asked the judge on the recommendation 
of the monitor he selected to release the State of Alabama from 
that consent decree. And, in fact, our experience is that now 
they are revisiting the counties again. They are doing 
something that falls completely outside the scope of the 
consent decree that the State of Alabama is a party to. And in 
many regards, the State of Alabama is helpless to do anything 
about it.
    Chairman Sessions. Are they paid for the time they spent 
doing that by the State?
    Mr. King. Of course they are. Everybody is being paid.
    Chairman Sessions. By the State of Alabama.
    Mr. King. By the State of Alabama.
    Chairman Sessions. The taxpayers.
    Mr. King. Our lawyers, their lawyers, the court monitor--
everybody is being paid. And in Alabama's experiences, these 
also develop into an opportunity for the bureaucrats to use the 
courts as a mechanism to do what they cannot persuade the 
legislature to do.
    Chairman Sessions. That is an important subject. I hope we 
will listen to that. I have seen that.
    Mr. King. I hope you will, too, because what we find in 
this case of which I speak right now, what we find is a judge 
who holds court, he listens to the legal arguments, then he 
opens it up to everybody in the room, and he says, ``Tell me, 
do you have enough money to run your department? Do I need to 
order more money to be spent?'' That is not the role of the 
Federal judiciary. That is the role of the Governor and the 
legislature of the State of Alabama.
    Chairman Sessions. Attorney General King, let me interrupt 
and get to this point precisely. In other words, sometimes the 
governmental entity being sued is happy to be in the fix to be 
thrown into this pot because he or she may hope that the 
plaintiffs will win and somehow the Federal court will order 
more money to go to their agency. Is that correct?
    Mr. King. No, it is more serious than that, Mr. Chairman. 
This is an instance where they do not even have to win, where 
the bureaucrats come in and they say, ``We need more money in 
order to come into compliance, in order for this to ever be 
completed,'' and it becomes a funding mechanism.
    It is difficult for me to explain to Alabamians why 
bureaucrats are allowed to go to the Federal courts and make 
their budget requests, but that is what is happening.
    Now, there are a lot of people here who have a lot of 
expertise and they are talking about a lot of academic 
exercises. I am telling you, as the Attorney General of a State 
who is charged with complying with unwieldy and difficult 
consent decrees, our ability to comply, our ability to do what 
has been required of us is being hampered by the very consent 
decrees under which we operate.
    We have a consent decree to operate the Department of 
Mental Health in my State. We agreed to meet certain clinical 
standards--clinical standards that continue to evolve, that 
continue to change, and the Federal courts continue to require 
the State of Alabama to alter its ability--its attempts to come 
into compliance with new and higher standards.
    We are not being asked to comply with the bargain that we 
struck. We are being asked to comply with a bargain that 
continues to be changed by the plaintiffs and by Federal judges 
and by court monitors and that the State is a helpless victim 
    I am not here to say that consent decrees are not 
important. I am not here to say that governments do not have 
important duties to those who depend upon them. I am not here 
to say that when the States fail to act responsibly those who 
are injured should not have a recourse. Of course they should. 
But I am here to say that the State of Alabama is requesting 
your assistance and your relief in giving us the ability to run 
our own State, to act responsibly, and to take the Federal 
judiciary and to take a limited group of plaintiffs' attorneys 
out of the process, to give us the ability to get relief that 
the citizens of Alabama expect when they elect a Governor he is 
going to be able to deliver to them. And right now he simply 
cannot do that. Right now, as Attorney General, I cannot do 
that. And that is wrong.
    Chairman Sessions. Thank you very much. I think you spoke 
eloquently of the reality that I hear. I was with a Governor 
just an hour--actually, 20 minutes before this hearing began 
from a State far distant from Alabama, and I asked her about 
it. I said I had to go to this consent decree hearing. She 
said, ``That is great. They are driving us crazy. It is 
interrupting my ability to do my job.'' So I think it is a 
    Senator Alexander?
    Senator Alexander. I do not have any more questions, 
Senator Sessions. This is a well-informed and distinguished 
panel of a variety of views. It would be hard to imagine how we 
can get a broader perspective than we have had today on this 
subject. And so I would invite any of them--and I imagine you 
will do this before the hearing ends--if there are things that 
you wanted to say that you did not get to say or if there are 
points that you would like for us to consider or if there are 
specific changes in the bill that you think would make a 
difference, if you could submit those to Chairman Sessions, I 
am sure Senator Schumer and other members of the Subcommittee 
and then those of us like Representative Berman and I, Senator 
Pryor and others--I will certainly be glad to read them and 
consider them, and that will be an important part of the 
    Chairman Sessions. Well, thank you so much. This was a 
spirited panel. It raises some important issues. Consent 
decrees are going to be and will remain an important part of 
the settlement of litigation in America. The idea that after 4 
years that the plaintiff would have to justify the continuation 
of that decree does not strike me as eviscerating the power of 
a decree. Some decrees, in my view, will automatically need to 
be continued. Everybody would know that the time had not 
sufficiently run to complete the remedy. Some decrees may be 
clearly entitled to be terminated, in which case that would be 
done. Some decrees will require the judge to give some thought, 
well he or she should if they are now managing an agency of a 
State or a county or a city.
    We do not need to treat too lightly the concept that a 
consent decree is virtually the equivalent of a legislative 
enactment. It binds everybody under that decree--a school 
system, the entire mental health system, the entire Department 
of Transportation. These are bound by these decrees, and it is 
virtually the equivalent of a legislative act, except if we 
pass a legislative act this year, the next Congress can change 
it. If they get the same number of votes we had this year to 
change, they can change it. But these decrees are powerful. And 
it is dangerous. I fundamentally believe it is not a healthy 
thing when an unelected, lifetime-appointed judge who is not 
accountable for the operation of the Department of 
Transportation or the Department of Education is now 
substantially managing that, is approving a decree that 
mandates it for indefinite periods of time in the future. So 
the decrees are valid. The decrees can be good and healthy. But 
as the Supreme Court is telling us, we ought to be respectful 
and understanding that it does impact in a significant way our 
separation of powers, the entire nature of our democracy, 
because it is removing the power from the people and putting it 
into the hands of an unelected judge who is not accountable.
    So I think it is a worthy thing, Senator Alexander, that 
you have raised, you and Senator Mark Pryor. He was an Attorney 
General, of course, a Democratic Senator. He shares your 
concerns about it. Mr. King has expressed his as another 
Attorney General.
    I think we ought to listen to the good suggestions that 
have been made here, listen to the concerns that have been made 
here, and I hope that you will continue to pursue your view 
that perhaps this Congress can do something that would make 
this system work better.
    Do you have any final comments you would like to make?
    Senator Alexander. No. The only thing that went through my 
mind a few times, everyone was talking about the short period 
of time that Governors and mayors serve. Most of us hope to 
serve longer than 4 years. Most of us do. The last mayor of 
Knoxville served 16 years. So the idea that suddenly--just to 
boil it all the way down, if I am running for Governor of 
Tennessee and I am elected and I want to improve the schools or 
fix the roads, and I persuade people to do that and they vote 
for me, then I think I ought to be accountable for that and 
have the authority to do that. To the extent I interfere with 
the constitutional or federally guaranteed rights of any 
citizen of Tennessee, then I ought to be hauled into court. 
Otherwise, I ought to be kicked out of office and accountable 
if I do not do my job.
    And so really we are talking about what set of decisions 
should be made and changed in the election process democracy 
and what set of decisions should be reserved for the 
independent third branch of Government, the judiciary. And it 
has always been a balance, and this has been a good discussion.
    Thank you.
    Chairman Sessions. Thank you very much. It has been a very 
interesting hearing.
    We will keep the record open one week to allow for any 
comments to be submitted to the record, and Senator Leahy has a 
statement for the record, and we will stand adjourned.
    [Whereupon, at 4:25 p.m., the Subcommittee was adjourned.]
    [Submissions for the record follow.]