[Senate Hearing 110-14]
[From the U.S. Government Publishing Office]



                                                         S. Hrg. 110-14
 
                   JUDICIAL SECURITY AND INDEPENDENCE

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                           FEBRUARY 14, 2007

                               __________

                          Serial No. J-110-11

                               __________

         Printed for the use of the Committee on the Judiciary


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                       COMMITTEE ON THE JUDICIARY

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


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois, prepared statement...................................    48
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa, 
  prepared statement.............................................    57
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts, prepared statement..............................   105
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................   107
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     3

                                WITNESS

Kennedy, Anthony M., Associate Justice, Supreme Court of the 
  United States, Washington, D.C.................................     6

                         QUESTIONS AND ANSWERS

Responses of Justice Kennedy to questions submitted by Senator 
  Brownback......................................................    33

                       SUBMISSIONS FOR THE RECORD

Clark, John F., Director, U.S. Marshals Service, Washington, 
  D.C., statement................................................    34
Conference of Chief Justices and Conference of State Court 
  Administrators, Robert M. Bell, Chief Judge and President, 
  Arlington, Virginia, statement.................................    39
General counsels of sixty major U.S. corporations, joint letter..    51
Judicial Conference of the United States, D. Brock Hornby, Judge, 
  United States District Court for the District of Maine, 
  Washington, D.C., statement....................................    58
Kennedy, Anthony M., Associate Justice, Supreme Court of the 
  United States, Washington, D.C., statement and attachments.....    69


                   JUDICIAL SECURITY AND INDEPENDENCE

                              ----------                              


                      WEDNESDAY, FEBRUARY 14, 2007

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Hearing was convened, pursuant to notice, at 10:04 
a.m., in room 216, Hart Senate Office Building, Hon. Patrick J. 
Leahy (chairman of the committee) presiding.
    Also present: Senators Kohl, Durbin, Cardin, Whitehouse, 
Specter, Sessions, and Cornyn.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. Good morning. Some Senators will be joining 
us a little later. The weather has somewhat slowed some, but I 
think how this committee proceeded with hearings after the 9/11 
attack, and then during the anthrax attack that shut down the 
Senate office buildings. A little snow is not going to stop us, 
especially when you have Senators from Pennsylvania and 
Vermont. We're actually aware of it.
    Although, I must admit, things are opening slightly late in 
my home State of Vermont. We had two feet of snow overnight, 
and I'm told that a number of places opened as much as an hour 
late. It's a new generation that goes slowly.
    But it's with great pleasure that we welcome to the 
committee today the Honorable Anthony Kennedy, Associate 
Justice of the U.S. Supreme Court to discuss issues of judicial 
security and independence.
    Both Senator Specter and I had the privilege of serving on 
this committee when Justice Kennedy was confirmed. In today's 
society, our independent judiciary faces many and varied types 
of threats. We've seen judges' physical security being 
threatened, but also the institutional security and 
independence under rhetorical attack by some affiliated with 
political branches.
    There are more subtle threats. As the Chief Justice 
recently reemphasized, there is pervasive uncertainty about the 
judiciary's financial security and ability to function as an 
efficient and effective arbiter of justice because of stagnant 
salaries year after year.
    It is my hope that, working together, we can make some real 
progress on these important issues. We need to do our part to 
ensure that the dedicated women and men of our judiciary have 
the resources, the security, and the independence necessary to 
fulfill their crucial responsibilities.
    Our independent Judiciary is the envy of the world and we 
have to take care to protect that. I have told this story a 
number of times. Shortly after the Soviet Union broke up, a 
group of parliamentarians from Russia were in my office and 
they were asking about how the judiciary works.
    One of them said, ``Is it true that in America people 
sometimes sue the State? I said, it happens all the time. He 
said, ``Is it also true that sometimes the State loses? '' I 
said, ``Trust me, it happens all the time.'' And he said, ``Do 
you then replace the judge when that happens? '' It was at that 
point I think they finally understood the independent 
judiciary.
    Now, we're going to take up the matter of court security 
this year by reintroducing legislation that I wish had been 
enacted last year. The Court Security Improvement Act is a 
bipartisan measure. I introduced it along with Senator Specter, 
along with the Majority Leader, Senator Durbin, and other 
members of this committee.
    House Judiciary Chairman Conyers has introduced an 
identical measure in the House. It is bicameral, it is 
bipartisan. It should have sent the signal we intend, finally, 
to complete action on our work and increase protection for the 
judiciary and their families. I have this bill on our mark-up 
tomorrow.
    Our efforts gained increased urgency after the tragedy that 
befell Judge Joan Lefco of Chicago. I remember as though it was 
yesterday her testimony before this committee. She is a Federal 
judge whose mother and husband were murdered in their home 2 
years ago. What she told us left a mark on every single member 
of this committee.
    And in the shooting last summer of a State judge in Nevada, 
it provided another terrible reminder of the vulnerable 
position of our Nation's State and Federal judges. We can't 
tolerate or excuse violence against judges. No one should seek 
to minimize what a corrosive effect that has on our system, so 
we should enact the Court Security Improvement Act as soon as 
possible.
    It helps, again, in another way, of protecting the 
independence of our judiciary. Our Nation's founders knew that, 
without an independent judiciary to protect individual rights 
from the political branches of government, those rights and 
privileges would not be preserved.
    The courts are the ultimate checks and balance in our 
system of government. In recent years, Justice Sandra Day 
O'Connor has spoken out against the attacks on the judiciary 
and the need to reinforce its security and independence, and 
she continues to lend her voice to this important subject, even 
though she has now stepped down from the court.
    But it is most unfortunate that some in this country have 
chosen to use dangerous and irresponsible rhetoric when talking 
about judges. We have seen Federal judges compared to the Klu 
Klux Klan, called ``the focus of evil'', and in one 
unbelievable instance referred to as ``more serious a fear than 
bearded terrorist who fly into buildings.''
    A prominent television evangelist even proclaimed: ``The 
Federal judiciary is the worst threat America has faced in 400 
years, worse than Nazi Germany, Japan, and the Civil War.'' 
This is beyond the pale. It is totally irresponsible. And 
perhaps more regrettably, we've seen some in Congress threaten 
the mass impeachment of judges with whom they disagree.
    Some--in one case even on the floor of the Senate--refer to 
the suggestion that violence against judges has been brought on 
by their own rulings. This is wrong. It is inexcusable. There 
is no place in political discourse of our country for that. The 
high-pitched rhetoric should stop for the sake of our judges 
and the independence of the judiciary.
    Judicial fairness and independence are essential if we're 
going to maintain our freedoms. Our independent judiciary is a 
model for the rest of the world. It's also a great source of 
our strength and resilience in this country.
    During the last few years, the courts have acted to protect 
our liberties and our Constitution, and we should be protecting 
them, physically and institutionally. We owe the our gratitude, 
and we owe them more. We could also demonstrate our respect and 
appreciation for our judiciary by making appropriate 
adjustments to their pay.
    One of the first bills that we passed in the Senate this 
year was a bill to authorize cost of living adjustments for the 
salaries of U.S. judges. Senator Specter, Senator Feinstein, 
Senator Cornyn joined me in co-sponsoring this bill. I thought 
it should have been taken the last Congress. I'm glad it's been 
taken now.
    I hope the House of Representatives would join with us in 
this and, of course, that legislation is but a modest step 
toward addressing issues raised by Chief Justice Roberts in his 
recent year-end Report of the Federal Judiciary.
    I've commended the Chief for speaking out on this matter. 
But I also want to commend Justice Kennedy for doing so today 
in the interest of preserving the judicial independence that is 
so critical for preserving our system of government. I told 
Justice Kennedy when I talked to him yesterday how much I 
appreciated him being here. His testimony today, like the Chief 
Justice's year-end report, provides important consideration.
    Let me yield to Senator Specter, who has spent more time 
than anybody I can think of in the Senate on these issues.

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE 
                        OF PENNSYLVANIA

    Senator Specter. Well, thank you, Mr. Chairman. I join 
Senator Leahy, the Chairman, in welcoming you here, Mr. Justice 
Kennedy. I recollect well your confirmation hearing. You came 
before the Judiciary Committee after the very contentious 
hearing in October 1987 for Circuit Judge Bork, and then the 
nomination of Circuit Judge Douglas Ginsberg, who withdrew. 
Then the waters were quieted when you came in and was 
unanimously confirmed.
    I compliment you on your outstanding service and your 
approach to the judicial duties, non-ideological, non-
doctrinaire, and you have come to be the so-called swing 
justice. It is always interesting to observe the court, the 
Rehnquist court, the O'Connor court, and the commentary about 
the Kennedy court.
    On the subject matters at hand, most of us have spoken out. 
We're going to get the Court Security bill passed. We should 
have passed it a long time ago. We had a hearing back in June 
of 2005. Almost 2 years have passed. The way the Congress 
works, when we were in conference, somebody wanted to add on 
some things, the death penalty for juveniles, and it was not 
acceptable and the matter ended. But that's a high-priority 
item. The pay raise is going to come through. Courts shouldn't 
be held hostage to the Congress, and we'll get that worked out.
    And on the issue of independence, many of us have spoken 
out when the court has been attacked for doing its duty on 
speaking out on the law. When these ridiculous suggestions were 
made about impeachment, they are quickly squelched.
    One subject which is very much in the news today is the 
question of televising the court. Before we started in the back 
room, I said to Justice Kennedy, ``Would you mind if I asked 
you some questions on televising the court? '' He shot back 
instantaneously, ``Not if you don't mind my answers.''
    [Laughter.]
    I won't mind his answers; no matter what they are, I'm 
prepared to listen.
    But there's been a lot of commentary. Two days ago, the 
Washington Post had an article on televising the court. Last 
week, the Legal Times had an article about televising the 
court. Last month, an article also in the Post, was once 
Cloister, now it's Chief of Nightline, and recently Justice 
Roberts and Justice Stevens appeared on ABC TV, and Justice 
Ginsberg on CBS with Mike Wallace, and Justice Bryer on Fox 
News Sunday.
    We thought those spots were reserved for Senators, and 
turned it on 1 day and saw Justice Bryer there. That's very 
dangerous activity. Justice Scalia and Justice Bryer had a 
debate and were on the web. Justice Kennedy presided over the 
trial of whether Hamlet was insane or not. Maybe if there's a 
second round of questioning we can get the answer to that, 
Justice Kennedy.
    But I have long believed that the court ought to be 
televised because the court's functions ought to be better 
understood. The court decides all of the cutting-edge 
questions: who lives, late-term or partial birth abortion, who 
dies on the death penalty cases, what is the power of the 
President.
    Not a blank check, the Supreme Court has delineated the 
power, and also what is the power of the Congress. And the 
court has handed down standards where part of the legislation 
protecting women against violence was stricken for our ``method 
of reasoning'', I have often wondered what happens when you 
leave the Senate steps and go across the green to the Supreme 
Court, how the method of reasoning is improved.
    If you were televised, I might get a little better 
understanding of that. The court is frequently challenged as 
being a super-legislature, and I think the public would benefit 
by better understanding the function of the court.
    Justice Kennedy and I have discussed the standard which he 
articulated, adopted by the court in the complex situation 
where Congress legislatures under Article 5 of the 14th 
Amendment, and the State interposes sovereign immunity under 
the 11th Amendment, and the Supreme Court has a test as to 
whether the legislation is congruent and proportionate.
    And I've told Justice Kennedy in the back room, I 
understand what ``proportionate'' means, but I haven't yet 
figured out what ``congruent'' means. The nominations for the 
court are very much an issue in the Presidential campaigns, 
very much an issue as to the approach of the candidates for the 
presidency, as to the composition of the court. I think there's 
been great public interest in the confirmation proceedings with 
Chief Justice Roberts and Justice Alito.
    My own view is that when you talk about government--and 
this isn't entirely applicable, but pretty much--when you talk 
about transparency, that's what we seek so people understand 
what goes on in government, or in Brandeis' words, that 
``sunlight is the best disinfectant''. Well, we don't need a 
disinfectant, really. There's a lot known about the court. But 
the reality is, television is the way people understand what is 
happening in the world.
    A number of the justices have spoken on the subject. I 
believe we have it right when the Supreme Court has the final 
word. Somebody has to be the ultimate arbiter, and I think that 
Marbury v. Madison had it right.
    But understand, the court is of really high value. When the 
court decides all of these questions, including who will be the 
President--in Bush v. Gore in the year 2000, the Presidency was 
decided by a single vote, 5 to 4.
    The Congress has a good bit of decisionmaking power on how 
many justices there are. We set the number at nine. We all 
recollect the court-packing effort to try to raise the number 
to 15, but that's a congressional decision. Congress decides 
when the court will start to sit, the first Monday in October. 
Congress decides what is a quorum on the court, six. We respect 
the issue of separation of powers.
    It has been my hope that the court would see the public 
interest and come to accept televising on its own, but I think 
the Congress has something to say and the Judiciary Committee 
voted out, 12 to 6, legislation to call for televising the 
court, subject to the court's decision not to on individual 
cases. A bipartisan bill has been introduced again this year, 
so it is a matter of considerable concern.
    I know that what Justice Kennedy says here today will have 
extra currency because many people will watch it on C-SPAN. My 
concluding comment, Mr. Justice Kennedy, is the Judiciary 
Committee has special standing with C-SPAN. Our programs are 
broadcast at 3 a.m. We have a tremendous following among 
America's insomniacs.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    The only problem with that following among insomniacs, 
Justice Kennedy, is that if I really screw up in one of these 
hearings, I hear from every single one of those insomniacs in 
letters and e-mails.
    But I want to thank the Justice for appearing here. It was 
19 years ago that he last appeared before this committee as a 
nominee to the high court. I was a member of the committee at 
that time.
    As Senator Specter says, it was a tumultuous time following 
Justice Powell's retirement and the unsuccessful nomination--
controversial nomination--of Judge Robert Bork. We overcame 
that division and we united to support the confirmation of 
Justice Kennedy. Both Senator Specter and I voted for him in 
the committee and on the floor.
    He is a native of Sacramento, California. He received his 
AB from Stanford University in 1958, spent a year at the London 
School of Economics, graduated Phi Beta Kappa.
    After graduating cum laude from Harvard Law School in 1961, 
he returned to California, taking over his father's law 
practice in 1963. In private practice, he taught constitutional 
law.
    In 1975, he was nominated by President Gerald Ford for a 
vacancy in the U.S. Court of Appeals for the Ninth Circuit, 
becoming the youngest judge in that court. Something I did not 
realize until the Justice mentioned it out back, he is one of 
only three Circuit Court judges nominated by President Ford.
    He's seen as a conservative in what was then a more liberal 
court. He has always been an active member of the judiciary, 
serving on committees of the Judicial Conference. I don't 
recall the last time a sitting justice appeared before the 
Judiciary Committee to discuss legislative issues affecting the 
judiciary.
    I know Senator Specter and I are always treated with great 
respect when we appear before the Judicial Conference. I would 
hope members would accord the same. Not so when we appear 
before court for arguments, though.
    [Laughter.]
    And you have reminded the Judicial Conference and the 
members of the court of that fact.
    Justice Kennedy, the floor is yours, sir.

  STATEMENT OF ANTHONY M. KENNEDY, ASSOCIATE JUSTICE, SUPREME 
           COURT OF THE UNITED STATES, WASHINGTON, DC

    Justice Kennedy. Thank you, Mr. Chairman and members of the 
committee. It is a pleasure to be with you today.
    With me in the front row to attend these hearings and to 
answer detailed questions on the legislation, if I do not have 
those responses for you, is U.S. District Judge Hornby from the 
District of Maine. The Director of the Administrative Office of 
Courts, Jim Duff, and the Administrative Assistant to the Chief 
Justice of the United States, Jeff Mineave.
    You mentioned my unanimous confirmation, Senator Specter 
and Senator Leahy. If I was of some small catalytic assistance 
in bringing about broad senatorial consensus, I am very proud.
    In my written statement, which I will not read but refer to 
just briefly, I began by saying that ``separation of powers'' 
and ``checks and balances'' are terms that we use 
interchangeably, synonymously, but they actually have very 
different thrusts.
    Separation of powers is designed to assure that each branch 
of the government has the resources and the authority to 
perform certain of its constitutional duties without over-
reliance on the other. The President has the power to pardon, 
the Senate has the sole power to initiate legislation, and of 
course, the power of the purse. The judiciary has the power to 
issue final judgments. Judges have life tenure. This is 
essential if each branch of the government is to be efficient 
and forthright in the exercise of its duties.
    On the other side is the mechanism of checks and balances, 
and it works somewhat the other way. Checks and balances 
recognizes that the three branches of government are really 
engaged in a common enterprise, a common purpose, and we have 
to have substantial interaction with each other.
    As Senator Specter mentioned, the jurisdiction of the 
courts, the rules of venue, the size of the courts, the 
structure of the courts, the structure of the circuits, is for 
the legislature to decide, and this is as it should be.
    Students both here and abroad are fascinated that Justice 
Thomas and I, for the last 10 years or so, appeared before the 
Subcommittee on Judicial Appropriations in both Houses of the 
Congress. It is more than a formality. It is more than simply a 
courtesy. It has a legal effect which is of tremendous 
importance.
    By custom we are very cautious about our budget requests, 
and we think there's a custom that the Congress gives great 
deference to that request. When we appeared before those 
committees in recent years, the questions have ranged rather 
far afield from the budget and from our appropriations request.
    Justice Thomas and I have talked about that and we have 
concluded that the questions are actually quite educational for 
us. They help us understand the difficulties that Congress has 
in allocating resources, and we hope that the answers we give 
are somewhat informative to the other side of the witness 
table.
    So when we received your invitation to testify, Mr. 
Chairman, when the Chief Justice received that invitation, we 
initially had some pause as to whether we should come, but for 
a number of reasons we concluded that it was quite proper for 
us to do so, and we willingly do so. We appreciate your 
invitation, although we have to be guarded and come before you 
not too often so that we do not intrude on your functions.
    This is an important time for the judiciary. It's an 
important time for the concept of judicial independence. The 
Chief Justice asked me to appear and it is my pleasure to be 
here. Thank you. Thank you very much for asking us.
    Chairman Leahy. Thank you, Justice Kennedy.
    Justice Kennedy. I would like to mention just a few more 
points about my opening statement.
    Chairman Leahy. Sure.
    Justice Kennedy. But please interject as you choose, Mr. 
Chairman.
    Chairman Leahy. No. Go ahead. If you wanted to add 
something more, please feel free.
    Justice Kennedy. Just a few things.
    Judicial independence is just like separation of powers and 
checks and balances. Those phrases do not appear in the 
Constitution. They are part of the constitutional dynamic that 
we use. They are part of the constitutional custom, part of the 
constitutional tradition that we have.
    Judicial independence is sometimes overused by judges. Just 
because you can't get a few more volumes in your library 
doesn't mean judicial independence is under attack. It's 
unfortunate if we over-use the term, because it is essential as 
a principle to establish the idea that the rule of law depends 
on an independent judiciary, or else you have the rule of 
power, not the rule of law.
    Judicial independence is something that is eagerly sought 
by judiciaries throughout the world, and they look to the 
judiciary of the United States as an example. The Congress of 
the United States has been very generous with the courts, with 
courthouses, with staff, with libraries, with software. Our 
physical facilities are the envy of the world.
    But as you mentioned, Mr. Chairman, the condition of our 
salaries is something that requires discussion. It is a subject 
that is, frankly, most awkward for me to talk about. It is a 
sensitive subject, but I think we should discuss it in a candid 
and frank way.
    The raw fact is that the congressional policy with 
reference to judicial compensation is threatening the 
excellence of our judiciary. Judicial independence presumes an 
excellent judiciary.
    I have got some graphs in my statement showing that the 
real income of the average American worker has risen by 15 
percent, and the real earnings of the judiciary and the 
Congress have decreased in the same period of time by 25 
percent. That is a 43 percent differential.
    This committee recognizes that urgent action is required, 
just as urgent action is required for the security measures 
that you're considering in the bill today.
    It is very important that you keep in mind the objective of 
restoring the judiciary to its preeminent place, the sum of 
$160,000 for a District judge, the present salary, sounds like 
a lot of money to the average American, and it is. But it is 
insufficient for us to attract the finest members of the 
practicing Bar to the bench. The Anglo-American tradition has 
been that we draw judges from the finest ranks of the 
practicing Bar. We are no longer able to do that.
    No one says that a judge should get as much as a senior 
partner in a New York law firm, or anything close to a one-to-
one ratio. But there are benchmarks: what a senior associate in 
a major law firm gets in a city in the United States, what a 
junior partner gets, what a beginning lawyer gets.
    Our law clerks leave and they are paid more the year after 
they leave us than we are. These are benchmarks that are real. 
It is not just a matter of the two staffs sitting down and 
talking about alternatives and coming up with some number.
    It is a question of restoring the place of the judiciary so 
that it has the eminence that it once did, because we simply 
can not attract the people we once did. The U.S. District Court 
for the Central District of California, which is in Los 
Angeles, has a number of vacancies. Judges have to work 6 days 
a week. They have a terrible backlog. But we just can't attract 
new judges. They look at the salary and they do not want it. We 
have a chart showing the declining number of judges who are 
entering from private practice that is attached to this 
statement.
    Now, of course, the intangible rewards of public service 
are of tremendous importance. I grew up in Sacramento, 
California. Most of my parents' friends were employees of the 
State of California: Director of Finance, Director of 
Department of Natural Resources, Director of Transportation, 
Legislative Counsel. These were the finest civil servants I had 
ever met. They were like the British civil servants. They were 
proud to work for the government of the State of California. 
Looking back, I think they were my role models.
    Of course, there are intangible rewards to judicial 
service, to civil service, to government service. My colleague, 
Justice Breyer, observed to me the other day, the government is 
not the only way to get those intangible rewards. You can 
teach. You can transmit the values of our Constitution. You can 
transmit our heritage to those young people who will soon be 
the trustees of that tradition, the trustees of that heritage.
    There is a tremendous intangible reward for teaching. And 
we're losing judges to the teaching profession. One of the 
finest judges in the United States, a U.S. district judge, the 
Chief Judge for the Eastern District of California, left in the 
middle of his career. He left everything on the table: no 
retirement, no pension, and became dean of a major law school. 
So not only are we losing judges coming in, attorneys coming 
in, we are losing judges from the bench.
    Now, the present Chief Justice and the former Chief Justice 
referred to this as a crisis, and I think what this was 
intended to convey is that this is an important moment. If 
salary relief is not given with the objective that I indicated, 
of restoring the judiciary to its proper position, I think it 
is almost counter-productive.
    You referred to the court-packing incident, Senator 
Specter. That was a real judicial crisis, just like Dred 
Scott's self-inflicted wound was a judicial crisis. In the 
court-packing crisis, it was 1937. There were 16 Republicans in 
the U.S. Senate. The President was very powerful, and he wanted 
to pack the court. The Senate found, the President found, that 
the American people were offended, that there was a reservoir 
of trust and respect for the courts that far exceeded what the 
President thought. That must continue to remain true. The law 
lives in the consciousness of the people and the people's 
respect for law is, in large part, linked to the respect for 
the judiciary.
    We have senior judges who are very hard-working judges. 
They keep our system afloat, many of them. Some of them do not 
have to work full-time, but most of them are required to take a 
one-third workload. They are required to take a one-third 
workload to keep the staff in their chambers. Most of them take 
a full load.
    I think it's quite wrong for the Congress to barter this 
commitment, this diligence, this good faith, this civic 
dedication for purposes that have nothing to do with judicial 
pay.
    So, Mr. Chairman, thank you very much for allowing me to 
make these remarks. I hope that the committee will understand 
that the judges cannot really make the case for their position, 
and your committee can be of great assistance in helping us 
state the issues, in explaining it to your colleagues, and 
explaining it to the entire Congress, and by your very prompt 
action to address the problems of judicial security and 
judicial independence. You indicated your continuing interest 
in the judiciary of the United States, and for that we thank 
you. It is my pleasure to be here.
    [The prepared statement of Justice Kennedy appears as a 
submission for the record.]
    Chairman Leahy. I thank you. I would note that the judges 
cannot make the case. You, as did the Chief in his year-end 
report, made the case very strongly. It is interesting.
    Both you and Senator Specter talked about the court-packing 
matter. Here was a case where you had a Democratic President, 
highly popular, overwhelming Democratic majority in the Senate, 
but instead of acting like a rubber stamp, as Congresses 
sometimes do with a President of their own party, the checks 
and balances of our system work very well, because a 
Democratic-controlled Senate said no.
    Even though there were a lot of reasons why most of them 
were disagreeing with decisions in the Supreme Court at that 
time, especially with some of the New Deal legislation, but 
instead of acting like a rubber stamp, as we've seen in recent 
times, they did not. It's a good example for all of us, not 
only for the courts, but for the Congress, for each of the 
separate branches. There's supposed to be checks and balances.
    As I mentioned earlier, we will be going further into the 
pay issue. I noticed with great apprehension the rise in volume 
and vehemence on attacks on judges and their decisions, both 
from the outside, and sometimes inside, the government.
    I know Justice O'Connor was criticized in civil tones of 
attacks on the judiciary. In a speech, she said that this would 
actually endanger the independence of the judiciary: when you 
hear rhetoric comparing judges to terrorists, of threatening 
judges with punishment for decisions they don't like, that's 
irresponsible; when James Dobson compares the Supreme Court to 
men in white robes, the Klu Klux Klan, it shows how out of 
touch he is with American values; when a Chief of Staff to a 
U.S. Senator calls for consideration of mass impeachments, it's 
wrong; as the then-Republican Majority Leader of the House 
espoused an impeachment threat against justices who decided 
cases in which he disagreed.
    I've been here 32 years and I can point to a lot of cases 
over the years where I may disagree, and other members of this 
committee would agree, and vice versa. Are we going to, those 
who are in disagreement, we automatically start impeachment 
procedures? I mean, how do you respond to that? Do you agree 
with Justice O'Connor's concern about this kind of attack?
    Justice Kennedy. Well, a few things occur to me. Democracy 
is a pretty hurly burly operation, rough and tumble.
    Chairman Leahy. Wouldn't have it any other way.
    Justice Kennedy. And the court, since the beginning of our 
history, has been involved in cases that have political 
ramifications. Courts do not decide them in a political way. 
They do not decide them in a political language. For example, 
slavery was not something talked about, it was so 
controversial.
    Aside from that, the most controversial issue in the first 
30 years of our history was whether there should be a national 
bank. The court rushed right into the controversy by deciding 
McCullough v. Maryland. It didn't decide it in a political way, 
it decided it in its own judicial language.
    There was tremendous controversy over what the court did. 
And it is right that people debate both the Constitution and 
the decisions of the court. The Constitution doesn't belong to 
a bunch of judges and lawyers. It belongs to the people.
    If a President is not an attorney, he has the obligation, 
still, to interpret the Constitution. We know that. If a 
Senator or Congressman is not an attorney, he or she has the 
obligation to interpret the Constitution.
    So the idea of criticism and disagreement is nothing new. I 
think that the scurrilous, really shameful remarks that you 
refer to are something that democracy has learned to live with. 
Democracy is old. Plato and Aristotle wrote about it. But 
democracy, with the mass media, is still something we're 
getting used to. We still have to find the right tones so we 
have a civil, rational, respectful, principled dialog.
    Chairman Leahy. But to go to a bottom line on that--
    Justice Kennedy. And I, frankly, don't think judges are 
intimidated by some of these words. I think they're improper, 
and coming from attorneys, I think they're wrong.
    Chairman Leahy. But Chief Justice Rehnquist said, and said 
in a very straightforward way, ``Judges judicial acts may not 
serve as a basis for impeachment,'' and then said, ``any other 
role would destroy judicial independence.'' Do you agree with 
that? Of the judicial acts?
    Justice Kennedy. Of course. The first impeachment of 
Justice Chase established, again, a good separation of powers 
rule. The Constitution does not say exactly the grounds of 
impeachment. It says the judges hold their offices during good 
behavior. But it has been established and it is part of our 
constitutional tradition that the decisions of the court, as 
you indicate, Mr. Chairman, are not the bases for impeachment--
it is part of our constitutional tradition.
    Chairman Leahy. You've spoken quite a bit about the risk to 
administration of justice in this country if we don't rectify 
the pay issue. I assume you agree with the position I've taken, 
and others have here, to de-link the cost of living adjustment 
for Congress and the judiciary.
    Justice Kennedy. Well, I do. Linkage has been a failed 
policy for both sides of the bargain. I understand that 
Congressional Members often maintain two residences. They have 
tremendous travel expenses that we do not. So, that's a problem 
that should be addressed.
    On the other hand, we simply cannot wait another 20 years. 
We have benchmarks. I think you should set judicial salaries 
and, in due course, whenever in your discretion you decide to 
do so, set congressional salaries as well. But the so-called 
linkage has been unfortunate and it has hurt the judiciary 
badly. I think it's quite unprincipled and quite unfair.
    Chairman Leahy. Thank you.
    Senator Specter?
    Senator Specter. Thank you, Mr. Chairman.
    Justice Kennedy, your appearance here today is powerful. 
When people see you on television, a sitting Supreme Court 
Justice speaking about the rule of law and independence and 
compensation, you carry great weight.
    People don't ordinarily see a Supreme Court Justice 
addressing these kinds of issues. It is powerful. I think it is 
powerful, as I listen to it. I've had the opportunity to know a 
great deal about the Supreme Court. When I walk into the 
Supreme Court chambers, I'm in awe, quite frankly. You're used 
to it because you are there all the time.
    Very few people can get into Supreme Court chambers because 
of limited seating, and once there, they stay only a few 
minutes and rotate out. This is part of why I would like the 
American people to know more about the court, to see you there. 
When you say it doesn't belong to the judges and a bunch of 
lawyers, it belongs to the people, I think you're right on the 
money. The question is, how do we get it there?
    The Supreme Court, in a major case, Richmond Newspapers v. 
Virginia back in 1980, said this: ``A public trial belongs not 
only to the accused, but to the public and the press as well. 
People acquire information on court proceedings chiefly through 
the print and electronic media.''
    Well, when you talk about a public trial or you talk about 
judicial proceedings, you talk about, you said, respect for law 
is dependent on respect for the judiciary. The direct 
implication is, respect for the judiciary is understanding what 
the judiciary does. Now, when the court said that in the 
Richmond case in 1980, television was much less pervasive than 
it is today.
    While there are objections in terms of lawyers playing to 
the cameras, or maybe even justices changing their approach, 
isn't there necessarily great value in communicating to the 
people what the court does if the people could see the inside 
of that room and see the nine of you there in your black robes, 
and see the way you approach these issues?
    Justice Kennedy. There is no question, Senator, but that 
the working of the Supreme Court, because that's a good 
perspective to understand constitutional dynamics, is of 
intrinsic interest. It is also an essential interest if we are 
to have an informed and enlightened citizenry. I have no 
quarrel with that.
    A majority of my court feels very strongly, however, that 
televising our proceedings would change our collegial dynamic. 
We hope that the respect that separation of powers and checks 
and balances implies would persuade you to accept our judgment 
in this regard.
    We do not discuss a case in advance of going on the bench. 
It's a fascinating dynamic. I ask a question. I say, ``Isn't it 
true there's standing because Congress has granted it under the 
statute? '' And one of my colleagues, say, Justice Scalia, will 
say, ``But isn't it true there is an Article 3 component? ``We 
are talking with each other, and sometimes the dynamic works 
and sometimes it does not, but we are using the attorney to 
have a conversation with ourselves and with the attorney.
    This is a dynamic that works. We have only a half hour per 
side, an hour per case. Please, Senator, do not introduce into 
the dynamics that I have with my colleagues the temptation, the 
insidious temptation, to think that one of my colleagues is 
trying to get a sound bite for the television. We do not want 
that.
    Please do not introduce this into our intercollegial 
deliberations. We do not want it. We are judged by what we 
write in the Federal reports. We have a timeline, a language, a 
grammar, an ethic, an etiquette, a formality, a tradition that 
is different from the political branch. It is not better. It is 
not worse. It is different.
    It's a different language, a different dynamic. We teach 
when the cameras do not come in the courtroom. We teach. They 
do not come into the courtroom because we are judged by what we 
write in the United States report and we're judged over a long 
period of time, not by the moment. We think cameras would 
change our dynamic. We think it would be unhelpful to us. We 
understand the intrinsic interest in much of what we do, and 
that's beneficial. We probably should do more in the way of 
teaching, et cetera.
    But we have come to the conclusion that it will alter the 
way in which we hear our cases, the way in which we talk to 
counsel, the way in which we talk to each other, the way in 
which we use that precious hour, and I hope that the Senate 
would defer to us, as a separate branch of the government. You 
mentioned, we told the Congress about its reasoning in, what 
was it, Morrison v. Roncella?
    Chairman Leahy. Method of reasoning.
    Justice Kennedy. It's a non sequitur to use that, to say 
that you can have cameras in the courtroom. We did not tell 
Congress how to conduct its proceedings. We said that, in a 
given statute, we could not find any evidence that Congress had 
shown us that interstate commerce was involved.
    Senator Specter. Mr. Chairman, a very brief, concluding 
comment.
    Justice Kennedy, I understand your concern about changing 
your collegial dynamics, and I respect your conclusion on that. 
I think you overstate it when you refer to some insidious 
conduct. I think that overstates it. But it seems to me that it 
balances all of what we decide is, to the potential impact on 
the way you conduct your proceedings with the public benefit 
for knowing what you do.
    I've always admired the way the court presents itself as 
``opinion'' of the court. It's not dogma. It's not for holy 
writ. It's an opinion. If Congress passes my bill, it will be 
only the opinion of the Congress because you have the last 
word.
    You can say it is inconsistent with the separation of 
power, and we would respect it. So it's our opinion, and that 
would be your opinion, and we would defer to your opinion in 
that context, obviously.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Senator Kohl?
    Senator Kohl. Thank you very much.
    Justice Kennedy, many of us have been concerned for years 
about the continuing use of secret settlements in our courts. 
This issue received a lot of attention in the Bridgestone 
Firestone cases in the late 1990s, yet little was done to 
reform the system in the wake of that scandal and the use of 
these agreements, as you know, continues today.
    One of the most recent examples involves Eli Lilly and one 
of its drugs, Iprexa. In 2005, it settled about 8,000 cases, 
all of which prohibited plaintiffs from discussing the facts of 
their case publicly. As a result, Lilly continued to sell their 
product and had sales of over $4 billion in that year.
    But in 2006, lawyers in an unrelated case leaked documents 
detailing some of the drug's serious side effects and Lilly was 
then forced to settle another 18,000 cases. Many of these 
injuries would have been avoided had those original settlements 
not been sealed.
    These secrecy agreements allow plaintiffs to get a 
respectable award and a defendant is able to keep damaging 
information from getting out. The public remains unaware of the 
critical public health and safety information, and they pay a 
heavy price. Many of us feel strongly that protective orders 
are not supposed to be used for the purpose of hiding damaging 
information from the public.
    Do you believe that courts should be required to review 
such settlements to ensure that public health and safety 
information is not being hidden from the public?
    Justice Kennedy. Senator, this is a complex and quite 
interesting issue that I have not thought through. I see some 
real dangers of abuse in what you have pointed out. There are 
some things that have to be sealed: probation, pre-sentence 
reports, where we have witnesses whose lives are in danger, 
cases with trade secrets where one company is stealing 
another's trade secrets, formulas, and so forth. These should 
be sealed.
    You point to a different area, which is products liability. 
I think there are some serious concerns in what you say. How 
the dynamics of it would work, I am not sure.
    It could be, if you had, say, an absolute prohibition 
against stealing, you would just divert that to arbitration, 
which would, I think, be counterproductive. I am very concerned 
that we are arbitrating too many things and the courts are not 
seen as the purest, finest fora for litigation of issues.
    Perhaps there could be some appellate procedure, some 
discretionary oversight. I just have not thought it through, 
Senator. But I have to say that you have pointed out a 
potential abuse that I think requires further study.
    Senator Kohl. Well, those of us are concerned that it would 
require--and I have a piece of legislation--that a judge review 
a settlement of that nature and make a determination whether 
public health and safety is involved. So it's not absolute. It 
would be subject to a judge's opinion, exercised in a flexible 
and a reasonable manner. How does that hit you?
    Justice Kennedy. Then I would have to ask if he makes that 
decision before the settlement has been reached.
    Senator Kohl. No. Once a settlement has been reached--
    Justice Kennedy. Because otherwise that settlement might be 
conditional. I just do not know the dynamics of it.
    Senator Kohl. I guess I would conclude by marking that what 
you are saying is it does deserve consideration.
    Justice Kennedy. Absolutely. Absolutely. Although I haven't 
thought it through.
    Senator Kohl. One more, please. States are required to 
provide meaningful access to court proceedings for individuals 
with limited English proficiency.
    Unfortunately, too many State courts do not have the 
resources to provide adequate interpreter services and as a 
result many non-English speakers do not understand what is 
happening when they appear in court.
    The shortage of qualified interpreters has become a 
national problem and it has serious consequences. In 
Pennsylvania, a committee established by the State Supreme 
Court called the State's interpreter program ``backward'' and 
said that the lack of qualified interpreters ``undermines the 
ability of the court system to determine facts accurately and 
to dispense justice fairly.''
    Other States have had some success. My own State of 
Wisconsin got a program off the ground in 2004 using State 
money and a $250,000 Federal grant; certified interpreters were 
scarce, but they were there.
    Now, just a few years later we have 43 certified 
interpreters. I will soon be introducing legislation to provide 
additional Federal assistance to our State courts by 
authorizing a grant program to help States improve their State 
court interpreter programs.
    Do you see this as a serious problem in our court system, 
and can you give us a system of how inadequate translation 
services can, indeed, affect individuals' access to our courts?
    Justice Kennedy. It is a problem, Senator, that has been 
around for a number of years. In my own State of California, we 
were familiar with the problem. You have a long colloquy 
between the interpreter and the witnesses, and then the 
interpreter turns and says ``yes'' or ``no''. This is 
frustrating for the jury. It is frustrating for the judge.
    We have had cases where the jurors will be bilingual and 
will be hearing the conversation, and one of the jurors will 
say, ``That's not what he said, you're an idiot,'' to the 
reporter. So, we have these outbursts. This is not how the 
judicial system should be run.
    So, of course it's a problem. You ask me to quantify it. I 
know the problem has been around for many years as we have an 
increasing population of non-English-speaking people. I am sure 
that it is being aggravated, and I think it is very important 
that adequate provision be made.
    Sometime you ought to go to the central dispatch 
headquarters in the Los Angeles police department. They have 
interpreters for 40 or 50 languages so they can give Miranda 
warnings over the radio. It is quite fascinating to see.
    Senator Kohl. Thank you, Mr. Chairman.
    Chairman Leahy. I chuckle listening to this, because in my 
early days of trying cases in Vermont, translating would 
usually be French and English, and half the jury would be 
bilingual at that time.
    I find this fascinating. When I was in law school, we had 
an opportunity where a number of us, for a particular reason, 
were invited to a luncheon where almost every member of the 
Supreme Court came, and their insistence had been that each 
member would sit at a separate table with a group of students.
    My wife and I were able to sit with Hugo Black. I was 
listening to his discussions. I was thinking it was a seminar 
all by itself, a semester seminar all by itself, at lunch. Now, 
in many ways your testimony has been the same.
    Senator Sessions?
    Senator Sessions. Justice Kennedy, thank you for your 
appearance here and your comments. I've got to say that I think 
the American judicial system, in particular the Federal court 
system, is one of the great strengths of our Nation. I've had 
the opportunity in this office to travel around the world and 
to see the difficulties other nations have in progressing.
    I've become more convinced than ever that our fundamental 
strength lies in a legal system, in a perception by the people 
that the courts make objective decisions based on the law and 
the facts, and therefore they're willing to acquiesce in them. 
Congress acquiesces even if we disagree sometimes.
    But we're not really interested in courts' opinions on 
foreign law. We're interested in the fidelity of the court to 
the Constitution and the laws of this country, which requires a 
certain degree of self-restraint that I think, in the last 30 
years or so, has not always been there.
    I think it has a danger to corrode public confidence, and 
rightly so. When the court declares something that is more 
appropriately a policy decision, instead of a decision ordered 
by the Constitution, instead of the Constitution says this, 
then basically the American people are denied that policymaking 
capability.
    So, that's a sore spot with the American people. I know you 
understand that, but I just wanted to share that with you 
because in the long run, acceptance by the public and respect 
by the public of the court is critical to this magnificent 
legal system that we have. And we must make sure that we are 
within that ambit of what's legitimate interpretation and not 
going beyond that. It has the danger of corroding that public 
respect.
    Maybe if you want to comment. I just wanted to share that 
as an opening thought in light of my other colleagues' 
suggestions.
    Justice Kennedy. When you go to these foreign countries, 
Senator, I know you see systems struggling to have an 
independent judiciary. And the judges understand it. They 
really want it. It is tragic to see that there are one or two 
steps forward, then another step back. Some judiciaries, which 
I thought were moving quickly toward independence, are now 
going the other way. So, of course, we must continue to be a 
model.
    We don't think much about Nepal. It's a small country, 3 
million people. They had the Shakespearean tragedy of the king 
being shot by the heir apparent, and then they found out that 
the legislative branch had embezzled all the money.
    They had a Maoist conspiracy, a Maoist uprising, a Maoist 
terrorist group. The only person in the country who had any 
credibility was the Chief Justice. He came to Washington. There 
was an assassination attempt and four people were killed in an 
assassination attempt on the court.
    He came to the State Department and they sent him over to 
me. He was a scholarly, erudite, wonderful man. And, you know, 
judges check each other out. You could tell he had the 
temperament of a fine judge. So I asked him about Nepal, what 
was going on. I said, ``What can we do for you? What can I do? 
''
    He said, ``Justice, just keep on doing what you're doing. 
You're an example for the rest of the world.'' Then he walked 
down the steps by himself. That made me feel good, as the host. 
I could tell this to my colleagues. But it also occurred to me 
that we are not doing enough to indicate that the American 
Constitution defines our people.
    By historical accident, providence, and design, I think, 
Americans identified with their legal documents, the 
Declaration of Independence and the Constitution. When we told 
England that we wanted our freedom, people were puzzled. They 
said, ``What are the Americans talking about? They are the 
freest people in the world already. What do they want? ''
    We gave them a legal answer. We gave them the Declaration 
of Independence, which was like an indictment of King George, 
III, then, later, the Constitution. If you ask an American what 
he is, what she is, they say we are bound together by this 
Constitution that we have. You're so right, that we must never 
endanger that link, that fortuitous, that providential 
connection that the American has with his or her Constitution.
    Now, insofar as the sources that judges use, I think the 
judge has to tell the litigants what he thinks, what she 
thinks, and why they think it. I think we have to find wisdom 
where we can. This is quite different from saying that we are 
bound by some foreign document.
    Senator Sessions. Thank you. My time is about up.
    Chairman Leahy. Did you have something further? Briefly.
    Senator Sessions. Briefly, I will just say this. I think it 
is a threat to the independence of the judiciary if a judge, at 
confirmation, is required to pre-judge a case that he's not yet 
heard. I think that's a danger that we got close to in recent 
confirmations, and perhaps we drew back before going too far.
    With regard to salaries, I don't think it's unprincipled to 
link salaries in Congress and the judiciary and would note, it 
depends on when you pick the date. When you became--I believe 
on the Supreme Court--your salary as a Court of Appeals judge, 
was $95,000 in 1988.
    Today, that salary is $175,000, which represents $13,000 
more in cost-adjusted 2006 dollars than would have been the 
case. So there's some points, if you go back, it's worse; there 
will be some points where it's better. I wanted to mention that 
and thank you for your comments about television.
    You explained, in an articulate way, my unease about 
requiring cameras in the courtroom. I think about--the lawyers 
know what the judge means. The other judges know what the judge 
means when he asks a certain question.
    Do you think that the judge might feel it necessary, if the 
whole country is looking at it, to go into a long explanation 
of why he or she is asking this question, and other things that 
could undermine that dynamic?
    Justice Kennedy. Precisely. I do not even want to think 
that that is what is happening.
    Senator Sessions. Thank you, Mr. Chairman.
    Chairman Leahy. Would that be considered a leading 
question, Senator Sessions?
    [Laughter.]
    Going by our normal procedure, alternating sides and at the 
time when Senators come in, I would yield to my distinguished 
colleague from Maryland, Senator Cardin.
    Senator Cardin. Thank you very much, Mr. Chairman.
    Justice Kennedy, it is a pleasure to have you before this 
committee. This is a unique opportunity to be able to question 
a Supreme Court Justice, so I want to move forward on the 
independence of the judiciary, because I am concerned about the 
points that you've covered in your comments before our 
committee in response to questioning.
    The compensation issues are critically important, and we 
need to address the concerns that you have brought out, the 
unfair, or going overboard on criticisms of judges that has 
been pointed out here today, and threatening impeachment.
    But I want to go a little bit further and just get your 
views as to other areas that we should be looking at that are 
important to maintain the independence of the judiciary. I 
don't mean just at the Federal levels. I'm also talking about 
our State courts.
    It seems to be fair game here to strip courts of 
jurisdiction if we don't like the decisions, at least try to do 
that, either by changing the ability to get into Federal courts 
or by literally taking away the Federal court's jurisdiction.
    When I served in the House, there were several bills that 
passed the House that dealt with taking away from the Federal 
courts jurisdiction because Congress didn't like the decisions 
of the Federal court, or at least those that had the votes in 
the Congress. Those bills were not going to pass the U.S. 
Senate. I think we all knew that at the time.
    I'm just interested as to your views on the points that 
you've raised about maintaining the quality of our bench and 
maintaining the independence of our judiciary, whether these 
are issues that we should be concerned about, whether there are 
other issues in addition to compensation and unjust criticisms 
of our judges, are ones that we should at least put on our 
radar screen.
    Justice Kennedy. Thank you, Senator. I think one of the big 
concerns about judicial independence is a subject that probably 
is not one that the Congress of the United States, as a Federal 
entity, would want to address, and that is the problem of 
elected judges in the States.
    The experience has been that if there's a contest and the 
challenger says something about the existing judge that the 
judge is soft on crime because he's followed Supreme Court 
decisions, that judge has to answer. They cannot let that 
charge go unanswered, so he or she has to have a campaign 
chest.
    I had hoped that Bar associations, interested groups who 
are concerned about our civic dialog, would use these judicial 
elections as a way to explain what judicial independence means. 
What are the requisites of judicial independence? What is good 
judicial temperament? What qualities do you look for in a 
judge? That is not happening. I do not think it is a subject 
that you can easily address, or perhaps that you should address 
because of the Federal balance.
    But I think we should be aware of it and assist the States 
that are trying to bring some logic, some fairness, some civic 
discourse into State elections. I think that is a big concern 
for judicial independence.
    Senator Cardin. In regards to election of judges, in my own 
State of Maryland, for our appellate court judges, they now run 
against their record. It seems to be working successfully as a 
way of getting around competitive elections.
    It's a tough issue politically to deal with because it's 
not necessarily challenging the independence of the judiciary, 
but the appropriate diversity on the bench. It's difficult to 
take on those issues in many of our States. But I agree with 
you. I have always supported removing our State judges from the 
election process, but we have not been successful in doing that 
at our Circuit Court level.
    Justice Kennedy. I think in most States you are not going 
to be successful. This was an Andrew Jackson doctrine for 
elected judges. In a country where judges have such authority, 
I can see why the voters would be very reluctant to surrender 
the authority they have to choose them.
    The challenge, and perhaps the opportunity, is to use these 
elections to educate the public and to educate ourselves better 
as to the requisites of judicial independence. I think we have 
an opportunity here we are not using.
    Senator Cardin. Without commenting on a specific effort to 
take away jurisdiction from the courts based upon a decision, 
but just a general strategy of the Congress to try to adjust 
jurisdiction when we don't particularly favor the court 
opinions, do you look at that as a concern or you just look at 
that as part of the political realities of the legislative 
branch of government?
    Justice Kennedy. I think that were such statutes to be 
enacted, that they themselves would have some constitutional 
questions about them and I'm reluctant to comment. As you know, 
it's been around a long time. The Bricker amendment in the 
1950s was an example of attempts to strip the Federal courts of 
jurisdiction, and there were other proposals concerning school 
bussing and school integration. It has been around. But I think 
I should not comment on the constitutional dynamics of it.
    Senator Cardin. Thank you.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you, Senator Cardin.
    Senator Cornyn?
    Senator Cornyn. Thank you, Mr. Chairman.
    Justice Kennedy, thank you for being here, and thank you 
for your longstanding service to our Nation and the judiciary.
    Justice Kennedy. Thank you.
    Senator Cornyn. As you may remember from our previous 
conversations, I've had the honor of serving as a member of my 
State judiciary for 13 years, so it seems kind of surreal for 
me to be here on this side and talking to you, a member of the 
U.S. Supreme Court.
    But getting to the point of some of the questions earlier, 
from that experience and my experience practicing law, I'm sort 
of led to the conclusion that one of the things that has 
damaged our civil discourse the most is the predisposition, and 
it seems to infect folks once they get inside the Beltway more 
than otherwise, to regard adversaries on a particular point of 
view of from a particular perspective as personal enemies.
    One of the things I value the most about my legal 
experience and training is the idea of trying cases against an 
adversary in a court of law, and then obviously the next time 
you might end up being on the same side. But I do think that we 
can have disagreements, and hopefully we'll keep those civil. 
But I, for one, am not particularly concerned that 
disagreements with the decisions of the judiciary have any real 
potential to endanger judicial independence.
    Here again, I know judges disagree. Matter of fact, we've 
had judges' decisions read back during the course of 
confirmation proceedings when judges have said things like, 
``This is an act of judicial activism,'' ``ignores the text of 
the statute,'' ``to reach a predetermined result''. Things that 
you might consider are pretty tough things that you would say 
but are the standard fare of a lot of judicial opinions.
    In fact, you made the point that Dred Scott was a self-
inflicted wound on the judiciary itself. That's certainly fair 
commentary. I happen to agree with that. But I think we can 
carry this idea of criticizing the decisions of the judiciary 
as perhaps endangering judicial independence too far, while at 
the same time I certainly would agree that we ought to try to 
make sure that we don't view our people we disagree with as 
personal enemies. We ought to regard them, perhaps, as 
adversaries and conduct our discussions, our debates in a civil 
and respectful way.
    I remember, you were the author of an opinion in a case I 
argued and lost on the U.S. Supreme Court. Thankfully, you 
authored the dissenting opinion and agreed with me, and I 
thought that opinion was exceedingly wise and I agreed with it 
100 percent. But it won't surprise you that some of the things 
we have talked about here today I will agree with you on, and 
some of the things I will disagree with you on.
    I agree with you on the issue of judicial compensation. I 
happen to be the father of a first-year law student and I'm 
astonished at the starting salaries of new lawyers in some of 
the best law firms, the people that graduate at the top of 
their class, the kind of people that you want to recruit, and 
do recruit, as your law clerks. It is, I think, a serious 
problem and one that Congress ought to address and fix.
    With regard to televised proceedings, I would have to fall 
back on my own experience and disagree with your comments 
earlier about television and courtroom proceedings. From my own 
experience on the Texas Supreme Court, we had a fixed camera in 
the courtroom that was very unobtrusive and that recorded the 
proceeding.
    And while I agree with your concern, at least, that you 
don't want to have judges trying to outdo one another in terms 
of asking questions in sound bites or hoping to get on the 
evening news, that it really did not exacerbate that problem, 
which, I have to tell you, my observation is that judges do 
tend to compete a little bit with, maybe not on the Supreme 
Court, but on appellate panels, who can ask the biggest zinger 
of a question, who can baffle the advocate by the question.
    I think there is a public educational function. I agree 
with Senator Specter, of allowing the American people to see 
how you do your work day in and day out on the bench.
    I understand your concern. I would just wonder if there 
might be some opportunity for us to work with you and your 
colleagues to try to find a way to allow the American people to 
see what it is you do day in and day out rather than to suspect 
that the Supreme Court is really not all that much different in 
the way it operates than, perhaps, Judge Judy or Law & Order 
episodes, where people do, I think, get a misimpression of how 
the judiciary does operate.
    Well, the rules of evidence don't apply to these 
proceedings, as you can tell, because I've taken up all the 
time. But I do want to ask you one last question here. This has 
to do with the men and women who work in the U.S. Marshals 
Service. I think the safety and security of our judiciary is 
certainly one of the ways that we can maintain an independent 
judiciary.
    I am concerned that the current appropriation bill that we 
have on the floor of the Senate cuts $18 million from the U.S. 
Marshals Service, and I've offered an amendment which would 
restore that money. I won't ask you about getting in the middle 
of that. I think it's always dangerous, obviously, for the 
judiciary to get between members of the Senate and take sides.
    But I will just ask you to comment, if you will, on the 
importance of the role that the U.S. Marshals Service plays in 
the safety and security of the Federal judiciary.
    Justice Kennedy. It is a vital role, Senator. As you well 
know from your experience on the judiciary, from being a 
lawyer, the litigant often sees the judge as the personal 
embodiment of the harsh law that is going to be applied against 
him or her, and even in civil cases--sometimes especially in 
civil cases. Domestic relations cases are ones where the 
emotions, for obvious reasons, run rampant.
    Then, of course, we supervise the whole criminal 
population, the criminal system where we had drug lords and 
gangs, people who have a real interest in disrupting the 
judicial system and intimidating judges.
    U.S. Marshals, we see nationwide. They protect us when we 
go to different cities. It is always reassuring to see the high 
quality of the people that we attract to the U.S. Marshals 
service. They are wonderful young people, very experienced ones 
that are coming in, and very experienced people who are in 
charge.
    I have not seen the numbers and I think it is not in the 
judicial budget so it is not something I would address at the 
Appropriations Committee hearing, but I am quite surprised 
that, in this day and age, they would cut funds for the 
Marshals Service. I, frankly, do not understand it. I am 
surprised that that is being proposed. But they are essential 
for us.
    I forgot to say when Senator Sessions was here, he would 
remember, and I was U.S. Circuit Judge for the 11th Circuit 
when Judge Vance a very fine U.S. Circuit Judge, from 
Birmingham, Alabama, was assassinated. The judges who are on 
the front lines and are the most visible, are U.S. District 
Judges.
    Circuit judges, too, can be targets, as the tragic case of 
Judge Vance will show. So the U.S. Marshals have to be ready to 
be there. Judges on the Circuit Courts and District Courts do 
get threats, and they are very upsetting and terrifying for 
yourself and your family. To have the U.S. Marshals Service 
there is necessary. It is not just the psychological assurance, 
it is necessary.
    Chairman Leahy. Thank you.
    Senator Cornyn. I remember when John H. Wood was 
assassinated in San Antonio, or my hometown as well.
    Justice Kennedy. Yes.
    Senator Cornyn. Thank you.
    Chairman Leahy. Thank you.
    Senator Cornyn. Mr. Chairman, could I ask, just by 
unanimous consent, I know my time is overdone. On the matter of 
the division of the 9th Circuit, I would just ask unanimous 
consent to introduce a letter dated August 17, 1998 from 
Justice Kennedy to Justice White on that subject.
    Chairman Leahy. Without objection, so ordered.
    Senator Durbin, you have been waiting here very patiently.
    Senator Durbin. Thank you very much. Thanks, Mr. Chairman.
    Justice Kennedy, we are honored by your testimony.
    Justice Kennedy. Thank you.
    Senator Durbin. I'd like to also acknowledge that Judge 
Hornby has submitted some information for the record about the 
issue of court security, a particularly important issue to us 
in Chicago, Illinois because of a tragic situation a year or 
two ago involving one of our District Court judges.
    For the record some 80 percent of the Federal judiciary has 
taken advantage of home protection that's been available 
through the U.S. Marshals Service. It's an indication of their 
concern and I hope that this is helpful in giving them peace of 
mind.
    I also want to say that Senators Leahy and Specter are 
pushing the Court Security Improvement Act, which I think will 
even enhance our efforts to protect members of the judiciary 
from threats. We want them to be safe not only in their 
dealings on the bench, but also in their home life, and we're 
going to do everything we can to make that happen.
    I'd like to address an issue which you characterized in 
your opening remarks as ``delicate'' and ``difficult'', and 
that's the issue of compensation. I'd say at the outset that I 
have supported increases in judicial pay, but I'd like to ask 
you to bear with me for a moment and comment on another 
observation of this challenge. At the current time, members of 
the Federal judiciary are compensated by and large at the same 
level as members of Congress.
    You also, in the Federal judiciary, under the Rule of 80, 
have a circumstance where a judge can take senior status and 
take full pay for the rest of their lives. That is the nature 
of the retirement, which is a generous retirement offered to 
Federal judges. By most standards, 100 percent pay would be 
something most workers would dream of.
    I'd also note that you left private practice to engage in 
this public service, as most of us did here, now serving in 
Congress and those of us who are lawyers, and on this Senate 
Judiciary Committee. At the current time, our compensation--
those on the panel and the compensation of most Federal 
judges--exceeds the compensation of 95 percent of the people 
who live in America.
    The suggestion of giving Federal judges an additional 
$100,000 a year, which some have suggested, would mean that our 
Federal judges would be paid more than 99 percent of all the 
people living in America working today.
    I find it hard to imagine that our founding fathers 
believed that an independent judiciary required compensation at 
a level higher than 99 percent of the people whom they work for 
in the United States.
    I understand what you say about the lure of private 
practice and compensation. I have a son who's an attorney and I 
know what is paid by Chicago law firms to those fresh out of 
law school. I am happy that his salary is good--better than 
mine--and I think most fathers would feel that way about their 
children.
    But I ask you this. Two things. How do we deal with the 
reality that every day there are prosecutors and defenders and 
public sector lawyers who make a conscious decision that they 
are more committed to public service than they are to 
compensation, that they are prepared to do their jobs, 
understanding that in a short period of time they could move 
into the private sector and make dramatically more money, but 
they believe that public service is good and that the amount 
that they are earning is adequate for a lifestyle of at least 
minimal comfort, maybe a little more?
    Are we suggesting then that the only way to bring quality 
people and keep them in the judiciary is to keep a compensation 
level that is always at the highest level compared to private 
practice?
    Justice Kennedy. Senator, as I indicated in my statement 
and as I said initially, there is no way that we can have 
anything approaching a one-on-one ratio with a senior partner 
of a firm, and you are not supposed to go on the bench to 
become wealthy. That is not the object. I do think that the 
framers wanted to have an excellent judiciary.
    John Marshall had to have his arm twisted to go into public 
service. Washington asked him for 3 days after Washington had 
retired to Mt. Vernon--please go into public service. Marshall 
was going to sneak out early in the morning, and there was the 
general in his uniform saying, ``You've got to do this.'' He 
left private practice with great reluctance, but, 
providentially, he gave a great gift of public service to the 
United States.
    But the statistics are something that we simply must face. 
We are losing our best judges, Senator, and we are not getting 
the highly qualified judges that we want. That is a fact. That 
is an economic fact. As I indicated in my statement, judicial 
resources is a tough sell. Even a rich country needs resources 
for schools, hospitals, health care, and roads.
    In poorer countries, it is the same. I tell 
parliamentarians and legislators in foreign countries, I say, 
``I know this is a tough sell. You go home and tell your 
constituents, oh, I raised the salaries of the judges.'' They 
say, ``What are you talking about? '' But a functioning, 
efficient, capable, highly qualified judiciary is part of the 
infrastructure. It is part of what makes the system, the rule 
of law, work.
    We had a judge, Senator--I can name any number of examples. 
I will use one of a judge who is deceased. You would probably 
remember, Mr. Chairman, Milton Pollack, a U.S. District Judge.
    Chairman Leahy. I do, indeed.
    Justice Kennedy. From the Southern District of New York, 
New York City. We had 100 cases in the wake of the fall of an 
investment firm called Drexel Burnham Lambert. There were 100 
cases, each with well over $100 million of real damages.
    We looked at it and we thought that the Federal judiciary 
would be tied up for 10, 15 years with these cases. We went to 
Milton Pollack, a U.S. District judge, then 82 years old. We 
said, ``Will you take these cases? '' Within 24 months, the 
assets of the company had greatly increased under his 
management.
    He settled 100 percent of the cases and he ordered the 
trustee to write out a check for over $600 million in fines to 
the U.S. Government, and for that you pay them $100,000 a year. 
I can't get those judges to come any more.
    We had a judge who, by any account, would be one of the 10 
most knowledgeable people in the world on class actions, a U.S. 
District judge in Birmingham, Alabama. We had him in charge of 
our complex litigation and mass tort litigation. He left the 
bench because of compensation. His departure from the bench 
caused litigants in those cases to pay attorneys' fees, I would 
think, in the tens of millions of dollars a year, and years of 
delay, and I cannot get those kind of judges in my system.
    Now, there has to be a mix. We can get talented, dedicated 
judges from the State system, but we need to draw more 
attorneys from the ranks of the practicing Bar and we cannot do 
it.
    Now, you mentioned the salary for life. Senior judges are 
required to take a one-third workload in order to keep their 
staff and their salary. Routinely they take far more than that. 
When I came to the bench, my predecessor told me, now I am 
going to have to take a one-third workload. He said, you know, 
it is bigger than my active workload when I came.
    And I could have said the same thing when I left. We cannot 
get judges in the Central District of California because of the 
workload. When I came, I think we had 500 cases a year per 
panel. It is now over 1,200. You need very capable, very 
dedicated people to do this.
    And it is not fair for you to trade upon the dedication and 
the commitment of these senior judges knowing they are going to 
stay. They are going to stay and they are going to serve you. 
But as a constitutional matter, you have a good-faith duty to 
pay them fairly. Linkage has prevented that, and congressional 
neglect has prevented that.
    Senator Durbin. I would just say, Mr. Chairman, I don't 
disagree with your observations. You know these men and women 
who are engaged in this better than I do, and the choices they 
are making, some personal, some professional, and the like. But 
the bottom line on public services, I don't think any of this 
took this to get rich, or even to keep up with the rich.
    I think we have to understand the balance that has to be 
struck here that still gives a premium for public service in 
the compensation that we're doing a public good, and I hope we 
can strike that balance.
    Justice Kennedy. I think there's no question but that the 
intangible rewards are important and satisfying. Although, as I 
indicated, we are losing judges to the nonprofit sector in 
teaching. We are losing some of our best judges to the law 
schools and we cannot get professors to come to the bench.
    Senator Durbin. Thank you.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much.
    Senator Whitehouse?
    Senator Whitehouse. Thank you, Mr. Chairman.
    Mr. Justice, how are you?
    Justice Kennedy. Fine. Thank you, Senator.
    Senator Whitehouse. Good. I served as a U.S. Attorney 
during the pre-Blakely, pre-Booker sentencing guidelines 
regime, when it was extremely strict and mandatory. I have not 
participated actively as a prosecutor, or in any other 
capacity, since those decisions. They have fairly dramatically 
changed the landscape.
    And setting aside the constitutional legal questions that 
Blakely and Booker resolved, my question to you is, there is an 
ideal balance that cabins the judges' sentencing discretion to 
a degree so that people have an idea what's coming and there's 
less room for caprice, and at the same time frees a judge to 
make sensible, fair, and independent sentencing decisions based 
on the facts in front of them, which are often not ones that a 
sentencing commission can pre-ordain or pre-figure with great 
precision.
    Are you comfortable that Blakely and Booker put us into 
that place or do you think that there is action required of the 
Congress in order to improve the balance in Federal sentencing?
    Justice Kennedy. I am not comfortable with anything in the 
Federal correctional system and with our sentencing policy.
    Senator Whitehouse. What should it be, ideally?
    Justice Kennedy. Booker Fan-Fan, and Blakely were cases in 
which I dissented on the law, and I probably should not comment 
on how they should be accommodated. I think the Congress and 
your committee have to undergo a study of where we have been, 
where we are, and where we should go in the sentencing system. 
You've seen it as a U.S. Attorney. Mandatory minimums, I think, 
are wrong. When the sentencing guidelines first came out, I 
wasn't too sure about them. I now think they are necessary.
    Senator Whitehouse. You think sentencing guidelines are 
necessary?
    Justice Kennedy. Yes. I think some guidelines, for 
consistency purposes.
    Senator Whitehouse. Yes.
    Justice Kennedy. It's just wrong for this judge to be 
particularly harsh on drug dealers, and this judge on bank 
robbers. I used to go to the district judges' dining room, and 
I concluded the only thing that's worse than sentencing under 
the guidelines is sentencing without them. So, you have to have 
guidelines in order to have uniformity.
    Still our sentences are too long, our sentences are too 
severe, our sentences are too harsh. You have, in the Federal 
system, close to 200,000 prisoners. In my State of California, 
we have an equal number, almost 200,000. Its costs $28,500 to 
$32,500 per year, per prisoner.
    You asked about U.S. Marshals. We've been talking about. 
They will take away a kid who's 18 years old. Well, he was 
doing what he shouldn't have done. He was growing marijuana in 
the country in his parents' cabin and he had his father's .22, 
and he was giving it to his friend.
    OK. He is a distributor, he has a weapon, and I think it is 
mandatory for 12 to 15 years. Mandatory. An 18-year-old does 
not know how long 15 years is. The pardon power is not being 
used. They pardon only a handful of people in the States and in 
the Federal system because they are afraid of re-offense, and 
so forth. So, there is no compassion in the system, there is no 
mercy in the system.
    When you are spending, let us say, again in the State of 
California, $30,000 a year on a prisoner and $4,500 a year per 
student in elementary school, there is something wrong. Now, 
that is apples and oranges because in the prisons you have 
full-time care. But to have, in the United States close to, two 
million people behind bars for lengthy terms, is just not 
working.
    We had some studies in which some of the prosecutors had 
some of the most innovative suggestions for pre-trial 
diversion, for rehabilitation programs, and so forth, and I 
just hope the Senate looks at this whole area. We are not going 
in the right direction.
    Senator Whitehouse. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you, Senator.
    I see what you're saying about mandatory minimum, Mr. 
Justice. As you know, my background was originally as a 
prosecutor. I am sure in the past I have voted for some of 
these mandatory minimums, usually because of something, as 
oftentimes when we Federalized crimes that should have been 
just left in the State. I agree with you. I think it is a 
mistake. I think it's a mistake to set these. I think they end 
up being abused. I think that they end up being abused. I 
really feel that we have to look at that again. I think we have 
to look at all these mandatory minimums. I think we have to 
start over again.
    Frankly, I wish that we could find some way in the Federal 
Criminal Code, whether it's through an outside group to first 
look at it and make recommendations, and then have us vote on 
it, I wish we would. There are too many crimes that may have 
sounded good, may have felt good by adding huge penalties, and 
unless the prosecutors show discretion, which they should, you 
get the case of the 18-year-old that you spoke of. We've got to 
go back and look at that.
    Too often, a legislature will say, we'll stop crime. We'll 
double the penalties. That doesn't stop crime. Improving law 
enforcement does. Changing some of the social backgrounds does. 
So, I applaud you for saying that.
    Let me go into another area. We had stories about golfing 
junkets and lavish gifts received by members of Congress that 
have made lobbying and governmental reform ethics a major topic 
now. We've passed a significant ethics reform bill in the 
Senate. The matter is still up in the air, even as some Members 
of Congress have gone to jail.
    But also judicial ethics and conflicts are important. At 
least in our case, voters get a chance, in the House, every 2 
years to toss somebody out if they think they're not ethical, 
in the Senate, every 6 years.
    There was a feature last year in the Washington Post about 
a 6-day global warming seminar in Yellowstone Park funded by 
polluters. It was attended by two DC Circuit judges who later 
issued a Clean Air Act ruling very favorable to the polluters. 
Maybe they would, with or without it, but the impression it 
gave the public was a very serious one.
    We hear about members of the judiciary receiving gifts from 
parties that may appear before them or attending private 
seminars sponsored by corporations who have personal financial 
interests in litigating parties. It undermines the public's 
trust.
    Now, last year the Judicial Conference took a significant 
step to improve transparency and public accountability and so 
on, with full disclosure of the financing for private seminars, 
mandating that. I think that's a good step forward.
    Would you support efforts to go further and establish a 
fund where the courts pay for judicial attendance at these 
seminars? I kind of liken it to, our duties oftentimes take us 
overseas. You can have a special interest group pay for that 
overseas travel. You can say, now, this is important for 
legislative reasons and the government will pay for the travel. 
I like the latter far better than the former.
    But what do you think about that, for these seminars, 
having a fund within the judiciary? You determine how it is, 
whether it's the chief judge of a circuit that determines it, 
or something like that?
    Justice Kennedy. I do think we have to be very careful 
about perceptions of impropriety, especially the judiciary. It 
must be above any perceptions of impropriety.
    Seminars are part of the American way of life. That is what 
makes our society very efficient. You go into any hotel in any 
major city of the United States and you find doctors, nurses, 
social workers, prosecutors, and they are learning about the 
newest thing. And judges should not be left out of that.
    Chairman Leahy. When I was a prosecutor I went to a lot of 
those seminars, but my office paid for it.
    Justice Kennedy. I think it is certainly worth looking at. 
If the tradeoff is that judges can only go to those--I would 
have to think about it. I would have to look at it.
    Chairman Leahy. Well, we'll follow up on this. I'd like to 
discuss it further with you. I'm going to discuss it with the 
Chief, also.
    Now, judges and justices are allowed some honoraria today, 
are they not?
    Justice Kennedy. No.
    Chairman Leahy. No?
    Justice Kennedy. Well, for teaching.
    Chairman Leahy. All right.
    Justice Kennedy. Although I can earn less now than in 1975, 
but that is something else again.
    Chairman Leahy. I mean, is this for all judges or just 
justices?
    Justice Kennedy. No. Justices can teach. We are set at--I 
will make it up--20 percent of some high government grade. I 
think it is about $22,000 a year to teach.
    Chairman Leahy. By ``teaching'', you can have a group set 
up and say, we are the--
    Justice Kennedy. No, that is not my understanding.
    Chairman Leahy. [Continuing]. Polluters R Us, and--
    Justice Kennedy. No. My own position is teaching at an 
accredited school.
    Chairman Leahy. OK. What do you think about a ban on that?
    Justice Kennedy. It has been a tradition that judges teach. 
I see no particular abuse of it.
    Chairman Leahy. Provided it's at an appropriate--

    Justice Kennedy. I taught night law school for over 25 
years.

    Chairman Leahy. And obviously if the law school has been 
there for 25 years, it's not set up for the purposes of 
teaching.

    Let me just conclude with this. First off, I have found 
this fascinating, I really have. I have found this, aside from 
my personal respect for you, fascinating to hear the give-and-
take. I wish it was not a day when most of us are on half a 
dozen meetings going on at the same time, and more could have 
been here.

    I'm glad, when we have leaders, including justices, who 
appreciate America's leading role in the world, which you spoke 
about. I had a great deal to do during this Nepal time, both in 
foreign aid and the so-called Leahy law involvement there.

    But what you said about the Chief Justice of Nepal saying, 
keep on doing what you're doing, I think that reflects the 
importance of America's role. We played a key role in the 
creation of the universal declaration of human rights, our Bill 
of Rights, our independence judiciary.

    You know yourself how many countries have basically 
followed that, especially when they become newly democratic. 
Justice Jackson's role at the Nuremberg trial. I mean, this is 
something every law student should have to read about, every 
history major should have to read about, and our support for 
war crime tribunals for perpetrators of genocide, crimes 
against humanity in the form of Yugoslavia, Rwanda, Sierra 
Leone. These are things we can be proud of as Americans.

    I was not so proud when our government declined just last 
week to join 57 other countries in signing a treaty already 
adopted by the U.N. General Assembly which prohibits 
governments from holding people in secret detention, something 
we have abhorred when other countries have done it. We have 
condemned those countries for detaining people in secret and 
covering up that detention.

    But now we have chosen not to join much of the rest of the 
world in condemning this. It is an outrageous tactic after our 
President admitted last fall that our government has been doing 
that. And even more inexplicably, our government declined last 
week to join 58 other countries who signed a non-binding ban or 
accord banning the use of child soldiers.

    I can think of few things so tragic than those countries, 
whether in civil war or insurrection, or whatnot, who brought 
in child soldiers, who taught 8-year-olds, 9-year-olds, 10-
year-olds how to kill, how to maim. I don't know why our 
government would pass up the chance to condemn this.

    America's reputation is important, whether it is at Abu 
Ghraib, Guantanamo, or secret prisons, I think this hurt us. We 
do want to use this example. The rest of the world holds us to 
a high standard. They want us to live up to our own ideals.

    The anecdote I told was actually true of those from the 
former Soviet Union saying to me, ``And you do not fire the 
judge when the state loses? '' I mean, these are examples that 
we can be proud of. If we fall short of that standard, I think 
it is not only our reputation that suffers, I believe the cause 
of justice everywhere suffers.

    So I would say that looking at the rest of the world is a 
good idea. There is no sin in doing research over the Internet. 
I would say that, even though some excoriated you for that. 
Most importantly, there is no sin--in fact, I call it a 
virtue--to recognize that there is a larger world around us and 
that we can set the example. If we fail to set the example, I 
think it hurts the rest of the world. If we set the example the 
right way, we're better. We're better as a people and the rest 
of the world is better.

    Senator Specter?

    Senator Specter. Thank you, Mr. Chairman.

    Justice Kennedy, I concur with Senator Leahy that it is a 
fascinating process. It is a peephole into the way the court 
works and the way a justice thinks, and the way the rule of law 
is carried out. I want to ask you a question about the court's 
declining docket and the intersection of a number of factors 
which have been raised by the commentators on why the court's 
docket has declined. The statistics are fairly dramatic. One 
involves the cert pool where, as reported, eight of the 
justices, excluding only Justice Stevens, have their clerks 
work in a pool.

    When Chief Justice Roberts was practicing law, it has been 
reported that he objected to that or raised a question about it 
because there may be less intense scrutiny on petitions for 
certiori.

    For those watching on C-SPAN, the court has the discretion 
in almost all cases to take cases; if four justices concur, it 
is a case worthy of court review. So the issue is framed that 
if there were nine individual reviews of these applications for 
cert, it might be more thorough and more cases might be taken, 
and that may impact on the court's docket.

    I am going to give you the whole picture because the 
factors are interrelated. Then there are questions raised about 
the court concluding its term customarily at the end of June or 
beginning of July, issuing opinions on the pending cases, and 
then by statute resuming on the first Monday in October.

    The question is raised as to whether that period where the 
court is not in session impacts on having fewer cases because 
the court does not sit for that 3-month period. I think 
Congress legislated to remove in a number of situations where 
the parties had a right of appeal, so called mandatory 
jurisdiction. You had made a comment earlier about not wanting 
to comment about whether the Congress had the authority to take 
away the jurisdiction. I believe we do not.

    Chief Justice Rehnquist, in his confirmation hearings for 
Chief, said that after some dialog he expressed the opinion 
that Congress did not have the authority to take away the 
jurisdiction of the court on constitutional issues, implicating 
the First Amendment, and that might be carried beyond.

    We have had some debates on the subject, but I do not see 
how the court can function as the interpreter of the 
Constitution if the Congress can take away the jurisdiction of 
the court. Congress has exercised some authority on 
jurisdiction on rights of appeal, so-called mandatory 
jurisdiction.

    The court does not take all cases involving conflicts 
between the Circuits. On the surface, it would appear that if 
the Circuits are in conflict, that would be the kind of a case 
the Supreme Court ought to hear. So let me begin with the first 
question. Does the cert pool have an adverse impact on 
individual lives' consideration of petitions for cert, that 
more might be granted if the justices looked at the cases 
individually?

    Justice Kennedy. We think just the opposite. The cert pool 
allows a clerk to spend a tremendous amount of time on that 
case. We have close to 9,000 petitions a year. Nine thousand a 
year Each one of those--

    Senator Specter. Do you need more clerks? We can give you 
more clerks.

    Justice Kennedy. I do not particularly want more clerks. It 
is about right.

    Senator Specter. Four is all right?

    Justice Kennedy. But this is their principal job most of 
the time. This is how they spend a tremendous amount of time. 
They look at each of these cases with a tremendous amount of 
care. If we did not do that, then everyone would look at it 
with less care, and I would not approve of that.

    On the docket, we have asked ourselves the same question. 
When I first came, we had close to 160 cases a year. It was far 
too much because, as you know, all nine of us sit on every 
case. In recent years we were down to 80, which we thought was 
too light. Recently, we have granted a number of cases--so 
we're climbing back.

    I am surprised that we do not take cases involving inter-
circuit conflicts. That is one of the principle reasons for 
taking the case. It may be that we did not think the conflict 
was real, or that it would go away, or there was some other 
case that would present it better. I am quite surprised at 
that.

    The commentators have not really come up with the answer, 
and neither have we, but there are three or four answers. One, 
a lot of our work is generated by new Federal statutes. There 
have not been major Federal statutes recently like the Clean 
Air Act, or the Clean Water Act, or the Bankruptcy Reform Act. 
Those always generate a tremendous amount of litigation. We 
just have not had those new enactments.

    Second, we understand boundaries of the administrative 
state. That is settled. There are difficult questions as to 
application, but the basic rules for when the agency has 
jurisdiction and authority and when it doesn't are fairly well 
known, and so our intervention is not required.

    I think, the emphasis on information technology, electronic 
technology, has made people more conscious of following 
precedents in other circuits and following our precedents. I 
think, really, there is more consistency and uniformity in the 
law.

    I do not think my colleagues would say we are underworked. 
We are very proud, Senator, that we get our work done every 
year on schedule and on time. Our docket is 100 percent 
finished on July 1, and we're very proud of that. The way we 
can do that is by taking 2 months to read and recover and so 
forth before we come back to the cert pool in September, so I 
would not want to alter that dynamic.

    Senator Specter. You say, ``two months to read and 
recover''?

    Justice Kennedy. Yes. And to do cert petitions, and so 
forth, and to be in contact with our offices. We're just not 
hearing arguments.

    Senator Specter. Do you do cert petitions over the summer?

    Justice Kennedy. Generally we don't discuss them. If we see 
one that we are sure is going to be heard and is very 
important, we will notify each other and by mail we will grant 
cert. We like to be all in the room, and we usually do that the 
last week in September.

    Senator Specter. Thank you very much, Justice Kennedy.

    Justice Kennedy. Thank you.

    Senator Specter. I think, along with Senator Leahy, that 
it's very useful. I agree with you, it can't be too often. It 
has to be well modulated. But I think your appearance here 
today does a great deal to communicate to the public what the 
court does, what a Supreme Court justice is like, his 
reasoning, and how he applies the rule of law, which is the 
example.

    I concur with my colleagues on my foreign travel. I'm asked 
again and again by jurists in other countries who have great 
respect for the exmaple which is set here. We'll return another 
day to how to best inform the American people of the important 
work you do. Thank you, Justice Kennedy.

    Justice Kennedy. Thank you, Senator, for the interest that 
you always show in the courts, for your own expertise, and your 
own dedication to preserving the judiciary of the United States 
to be an independent branch that's admired for its commitment 
and its dedication. Thank you very much. You have done a great 
deal to help us.

    Chairman Leahy. And Justice, we'll include in the record 
further remarks by Senator Durbin, where he also refers to 
Judge Hornby in his capacity as Chair of the judicial branch's 
Committee of the Judicial Conference, his references to what 
the Marshals have done.

    [The prepared statement of Senator Durbin appears as a 
submission for the record.]

    Chairman Leahy. I will leave the record open for anybody 
else who has a statement.

    But let me close again by thanking you, Justice Kennedy. At 
the risk of embarrassing you, I want you to know that during 
the last decade you've done a lot to advance the cause of human 
dignity and your decisions are going to stand as a landmark 
throughout time in that regard. Human expression is 
fundamentally and constitutionally a manifestation of the 
freedom upon which this country is founded, freedom of 
individuals, freedom, I might say, of our spirit as a Nation. 
You give life to the heart of liberty in recognizing human 
dignity.

    We have spoken today of rhetorical attacks on the 
judiciary. Actually, Justice Kennedy, nobody has suffered more 
slanderous treatment than you have from some segments of the 
body politic, but no one has reacted with more grace and 
dignity than you have, and I applaud you for that.

    Justice Kennedy. Thank you.

    Chairman Leahy. We stand in recess.

    [Whereupon, at 12:02 p.m. the hearing was adjourned.]

    [Questions and answers and submissions for the record 
follow.]

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