[Congressional Record Volume 142, Number 32 (Monday, March 11, 1996)]
[Senate]
[Page S1780]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         ADDITIONAL STATEMENTS

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          WHY THE ``LEAST DANGEROUS'' BRANCH IS ALSO THE BEST

 Mr. SIMON. Mr. President, I confess, I am not a regular reader 
of Legal Times, though my staff is, and they call articles to my 
attention.
  But a longtime friend, Gene Callahan, sent me the first of a series 
of monthly columns that will be written by our former House colleague, 
Abner Mikva, who has also served on the Circuit Court of Appeals in 
Washington, DC and served as Counsel to the President.
  His perspective should be of interest.
  Judging by his first column, which I ask to be printed in the Record, 
it should be viewed by many more people than those who read the Legal 
Times, with all due respect to that readership.
  His first column speaks with pride about the Federal judiciary but 
also has some suggestions for improvement there, suggestions that, in 
part, involve the legislative branch of Government.
  I urge my colleagues to read Abner Mikva's first column.
  The text of the column follows:

                  [From the Legal Times, Feb. 5, 1996]

          Why the ``Least Dangerous'' Branch Is Also the Best

                          (By Abner J. Mikva)

       Early last month, while the two political branches of 
     government yielded to the elements and closed down for the 
     blizzard, the Supreme Court of the United States was doing 
     business as usual. It may have looked like a hot-dog trick to 
     some, but Chief Justice William Rehnquist was making a point 
     worth making: While the rest of government is perceived as 
     sick and wanting, the judiciary, like the Energizer bunny, 
     keeps on going.
       Now that I am a disinterested observer (except for my 
     pension, which as far as I know has no contingencies based on 
     behavior), I find that the federal judiciary works amazingly 
     well.
       It always has been the least dangerous branch, but for a 
     good period of its history that was because the federal 
     judiciary did not have many demands upon it. This is no 
     longer true. In almost every session of Congress, some new 
     tasks are put to the federal courts. Everything from voting 
     rights to car-jacking is now considered appropriate for 
     federal court jurisdiction.
       At the same time, while the total judicial appropriation is 
     still a small blip in the federal budget, it has been 
     increasing exponentially. As with other rapaid growth, 
     inevitably some money is not spent wisely.
       The biggest single extravagance is Congress-driven: Should 
     we have a federal courthouse at every crossroads in America? 
     If the federal courts have selective and limited 
     jurisdiction, should not the parties and their lawyers be 
     required to come to the population centers of the country to 
     litigate? But I remember from my days in Congress that it was 
     a feather in the cap of a member if he or she could deliver a 
     new courthouse (and a new judge) to some small town in the 
     state.
       Meanshile, the U.S. Courts of Appeals allow their judges to 
     live wherever they want to within the circuit, providing 
     chambers, equipment, and staff just to service those judges 
     who would rather live in a bucolic place than in the big city 
     to which the appellate court should limit its activities. 
     (When I raised both these matters as a member of the U.S. 
     Judicial Conference, I was met with the icy resistance of 
     incumbent judges who like things the way they are.)
       Even accounting for these blemishes (and others that I 
     don't recount here), the federal courts are the most 
     efficient institutions in our government. They perform their 
     designated functions admirably. The appellate process 
     provides a self-corrective device that fixes most of the 
     mistakes and excesses of the lower courts. The judges really 
     do preserve, protect, and defend the Constitution of the 
     United States. And the reasons are pretty obvious.
       First and foremost, there is the careful selection method 
     employed to choose federal judges. There was a saying when I 
     went to law school that the A students became law professors, 
     the B and C students made a lot of money as practitioners, 
     and the D students became judges. But that was never 
     applicable to federal judges, and certainly is not true 
     today. The large number of academicians who become federal 
     judges indicates that legal ability is an important 
     perrequisite for appointment. (On the Supreme Court alone, 
     there are three former full-time law professors: Justices 
     Antonin Scalia, Ruth Bader Ginsburg, and Stephen Breyer.)
       The whole process is the closet thing that we have to a 
     meritocracy in government. While U.S. senators have a large 
     voice in deciding who become district judges, the candidate 
     is subject to merit review in the first instance by the local 
     bar associations, the local press, and all the other 
     gauntlets that a judicial aspirant has to traverse. After 
     finishing that section of the obstacle course, the would-be 
     judge has to pass a full field investigation by the Federal 
     Bureau of Investigation and a thorough vetting by the 
     American Bar Association. Then, and only then, is the name 
     sent to the president with the recommendation that he 
     nominate. If the president agrees, then, and only then, is 
     the name sent up to the Senate for confirmation.
       Appointments to the Courts of Appeals are even more 
     difficult. While the senators may not have as much say in 
     choosing the nominee, they weigh in heavier in the 
     confirmation process. (I still have bumps on my head from my 
     own confirmation battle, which took more than six months and 
     aged me many times that period. I had the National Rifle 
     Association--a formidable opponent--on my case.)
       Many are the casualties who could describe how tortuous is 
     the path. Some bad press, a few disgruntled colleagues or 
     clients, an over-exuberant writing--any of these can derail 
     someone who would like to be a judge. Not all such 
     derailments are fair or pretty, but they do provide a 
     thorough preview of who is being appointed to the federal 
     bench. The result is a bench both competent and clean.
       There are exceptions, of course, but they are rare, 
     compared to those of the other two branches of government. 
     Indeed, one of the exceptions, Judge Alcee Hastings, was 
     removed from the bench by Congress after his colleagues 
     deemed his conduct inappropriate to judicial service. A jury 
     had previously found him not guilty of criminal conduct in 
     the matter, and the people of the sovereign state of Florida 
     have since elected him to Congress.
       There are other reasons why the judicial branch performs so 
     well. The Judicial Conference, the governing body for the 
     federal judiciary, is right for the task. Contrary to what 
     Judge William Schwarzer wrote recently in Legal Times 
     (``Governing the Federal Judiciary,'' Dec. 11, 1995, Page 
     24), the very fact that the judges in the conference do 
     rotate, are not expert bureaucrats, and are not all from 
     Washington, D.C., is a plus. I have had a close-up view of 
     the workings of the other two branches, and neither has any 
     systems as efficient as the 25 circuit and district judges 
     who, along with the chief justice, make policy for the 
     federal judiciary.
       Another ingredient in the judicial success formula is the 
     law clerks. The clerks, who come in for a year or two, are 
     very bright, respectfully irreverent, and full of enthusiasm. 
     Again, the rotation of clerks is a plus, and I worry that 
     more and more judges are using career law clerks.
       Senior status is another idea that works. The notion that a 
     judge can semi-retire, still perform useful service, and open 
     up a slot for a younger and more vigorous person is almost 
     too good to be true.
       That judges are as independent as they say they are is one 
     of the most important reasons for the success of the judicial 
     branch. This makes it all the more disturbing that some of my 
     former colleagues, both on the bench and in Congress, think 
     that Congress should exercise more vigorous oversight of the 
     performance of judges. Sen. Charles Grassley (R-Iowa) wants 
     judges to fill out time sheets so that he can decide whether 
     they are working hard enough. Judge Laurence Silberman thinks 
     that there are too many judges authorized on the D.C. 
     Circuit, and testified to urge Congress not to fill an empty 
     slot.
       Given all the serious problems that other institutions of 
     government have, both in their performance and in the way 
     they are perceived, it is distressing that some would rather 
     tinker with the judiciary. But then, there have always been 
     those who would rather fix something that is not broken than 
     do the serious lifting involved in real government reform.

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