[Congressional Record Volume 144, Number 138 (Tuesday, October 6, 1998)]
[Senate]
[Pages S11578-S11579]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       JUDICIAL ANTINEPOTISM ACT

  The PRESIDING OFFICER. The clerk will report the bill.
  The legislative clerk read as follows:

       A bill (S. 1892) to provide that a person closely related 
     to a judge of a court exercising judicial power under article 
     III of the United States Constitution (other than the Supreme 
     Court) may not be appointed as a judge of the same court, and 
     for other purposes.

  The Senate proceeded to consider the bill.
  Mr. KYL addressed the Chair.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, let me thank Senator Leahy for his 
cooperation in allowing us to get this bill up at this time and deal 
with it in an expedited fashion. I will describe briefly the reason for 
the legislation, what it does. I will ask unanimous consent to submit 
further remarks for the Record.
  Under existing law, section 458 of title 28 of the U.S. Code reads: 
``No person shall be appointed to, or employed in, any office or duty 
in any court who is related by affinity or consanguinity within the 
degree of first cousin to any justice or judge of such court.''
  I will read the words that pertain to judges: ``no person shall be 
appointed . . . to any court who is related . . . to any justice or 
judge of such court.'' That language seems pretty straightforward on 
its face--that you can't have relations on the same court, nominated by 
the President or appointed by the Senate. Notwithstanding that 
relatively clear language, there has arisen a controversy over whether 
it means what I suggest it says. The administration has actually 
interpreted it in a way that could mean that it applies only to 
employees of the court, not to judges of the court themselves.
  This bill clarifies that it applies to both, which I think was both 
the original intent and the best public policy. I note that the issue 
has arisen because of the nomination of Professor Fletcher to be a 
judge on the Ninth Circuit, since his mother sits on the circuit 
currently. Frankly, most people were not aware of the statute, Madam 
President. But, in my view, we should not do something that is not 
permitted under the law. Therefore, while I acknowledge that the 
administration has raised a question about the interpretation of the 
statute, I think the statute is pretty clear. This bill makes it 
crystal clear that it applies to both employees of the court and judges 
of the court.
  In effect, what the legislation would do is to say that on the same 
court, like the same circuit or the same district court, you would not 
be able to have a father and son, two brothers, two sisters, that sort 
of thing. But you could have people related on different circuits or 
different Federal district courts. For example, you could have a 
brother in the Fifth Circuit and a brother in the Second Circuit. You 
could have two sisters serving in different circuits or different 
districts in the State of Maine, or of the State of Pennsylvania, or of 
the State of Vermont. But you would not be able to have two close 
relatives in the very same court.
  The public policy reasons for that are fairly obvious. When a 
litigant is before the court, the litigant wants to know that he or she 
is being treated fairly. When a relative who is that close to a judge 
that may have decided a case on a panel of judges is then being called 
upon to review the decision of that close relative, the litigant 
clearly is going to have a question as to whether his or her case can 
be treated fairly. Here is an example: A circuit court judge sits on a 
panel of three judges who decide against a plaintiff. That case is then 
given to the en banc panel of the circuit court in which the father, or 
the brother, or the sister of that judge is also a member of the panel; 
the litigant might well be a little skeptical that the brother, sister, 
father, or whoever it is, is going to be treating him fairly, given the 
fact that the question is whether or not he will overturn the decision 
of his brother, or his son, or whoever the relative is.
  So it is historic that we have tried to avoid that kind of conflict 
of interest. In most cases, it can be avoided. The kinds of situations 
in which this will arise are very rare. But since it has arisen in the 
context of this particular nominee, and since we think we can make the 
statute crystal clear to apply to both judges and employees, it seemed 
like a good thing to do.
  I have two final points. One, this does not apply to the U.S. Supreme 
Court. Constitutionally, we have the ability to set the criteria or 
qualifications for circuit and district courts, but we don't have that 
ability for the Supreme Court. That is fixed in the Constitution. We 
could not apply it there.
  Secondly, it only applies to nominations made after the effective 
date of the statute. For those interested in the nomination of 
Professor Fletcher, this statute or change would not adversely affect 
his nomination or confirmation by the Senate.
  With that explanation, I yield to Senator Leahy for such comment as 
he may want to make. I know he is in opposition to the bill.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. LEAHY. I thank my friend from Arizona. As he knows, I have 
opposition to this bill coming forward. I am not in favor of the bill. 
It will pass, I understand, but I am not in favor of it. I know of no 
problem created by the appointment of judges who are from the same 
family. Indeed, the three historical example of which I am aware lead 
me to the opposite conclusion. Justice David Brewer served with his 
uncle Justice Stephen Field on the United States Supreme Court after 
being appointed by President Harrison in 1890. Learned and his cousin 
Augustus Hand served together in the Southern District of New York and 
on the Court of Appeals for the Second Circuit. Richard and Morris 
Arnold are brothers currently serving on the Court of Appeals for the 
Eighth Circuit. All served with distinction.

  I do not know why the country should be deprived of the judgment and 
wisdom of someone because a relative proceeded him or her to the bench. 
We have had relatives serve simultaneously in government before and 
now. Should one of the Levin brothers or Hutchinson brothers not serve 
in Congress? Should one of the Breyer brothers be barred from the 
federal bench? For that matter, should federal judges be prohibited who 
are related to Senators who recommend them to the President and then 
voted for their confirmation?
  I believe that S. 1892 is an unnecessary and unwise bill. Moreover, 
it could lead to appointment barriers against daughters and nieces of 
current judges. With people living longer and women as well as men 
having been practicing law and entered public service in the last 
decades, I fear that the prohibition envisioned by the bill will serve 
as yet another barrier to keep qualified women from being appointed to 
the bench. This may be an unintentional consequence of the bill, but a 
likely consequence nonetheless.
  Senator Kyl's bill is intended to do what section 458 of title 28, 
United States Code, does not; namely, prohibit the appointment to a 
federal court of a relative of a judge already serving on that court. 
The bill would amend the law to add a prohibition against the 
appointment of a person to a federal court on which a first cousin or 
closer relative of that nominee was an active or senior judge.
  In 1914 President Woodrow Wilson appointed Augustus Hand to the 
United States District Court for the Southern District of New York 
where he joined his distinguished first cousin and close friend Judge 
Learned Hand. In 1927, President Calvin Coolidge elevated Judge 
Augustus Hand to the United States Court of Appeals for the Second 
Circuit, where he rejoined his cousin Judge Learned Hand, who had been 
elevated three years before. Had the Kyl bill been in force, neither of 
these appointments would have been in accordance with law.
  The service of the Hand cousins on the Second Circuit was central to 
the development of the law in our Circuit

[[Page S11579]]

and to its reputation as the finest federal appellate court in the 
country.
  More recently, just six years ago in 1992, President George Bush 
appointed Judge Morris Arnold to the United States Court of Appeals for 
the Sixth Circuit, where he joined his brother Judge Richard Arnold on 
that court. In our confirmation proceedings, a number of Senators 
commented favorably on the fact that Judge Arnold was joining his 
distinguished brother.
  When it was a brother being nominated by a Republican President, the 
familial relationship was seen as a plus, a benefit for the public. Now 
that we have a Democratic President nominating a son to join a bench 
that has included his mother, a new danger of possible appearance of 
conflict of interest is being conjured up as an excuse to delay and 
oppose confirmation of a distinguished scholar and decent person.
  I worry that we are raising something that we don't need to raise. I 
realize this affects Professor Fletcher's appointment. But I think we 
may have legislated beyond where we need to legislate.
  There are problems with the appointment of judges to the federal 
judiciary, but nepotism in the appointment of judges does not appear to 
be one of them. After all, it is the President who nominates and the 
Senate that consents. If we really wanted to do something about the 
evils of nepotism, we would prohibit Presidents from nominating their 
relatives or the Senate from confirming theirs. Other judges, relatives 
or not, do not have a role in the appointment process.
  The bigger problem with respect to the judiciary is the assault on 
the judiciary by the Republican majority and its unwillingness to work 
to fill longstanding vacancies with the qualified people being 
nominated by the President. Professor Fletcher's nomination has been a 
casualty of the Republican majority's efforts. Forty-one months and two 
confirmation hearings have not been enough time and examination to 
bring the Fletcher nomination to a vote.
  Professor Fletcher is a fine person and an outstanding nominee has 
had to endure years of delay and demagoguery as some choose to play 
politics with our independent judiciary. The Ninth Circuit continues to 
function with multiple vacancies among its authorized judgeships, 
although we have five nominees to the Ninth Circuit pending before the 
Senate for periods ranging from four to 41 months. Two await hearings, 
one awaits a Committee vote, and two have been on the Senate calendar 
awaiting final action for many months.
  This is too reminiscent of the government shutdown only a couple of 
years ago and the numerous times of late when the Republican 
congressional leadership has recessed without completing work on 
emergency supplemental and disaster relief legislation, on the federal 
budget, campaign finance reform, comprehensive tobacco legislation, the 
patient bill of rights and HMO reform.
  In his most recent Report on the Judiciary the Chief Justice of the 
United States Supreme Court warned that vacancies would harm the 
administration of justice. The Chief Justice of the United States 
Supreme Court pointedly declared: ``Vacancies cannot remain at such 
high levels indefinitely without eroding the quality of justice that 
traditionally has been associated with the federal judiciary.''
  Once this bill is acted upon by the Senate, the Senate will finally 
be allowed to turn its attention to the longstanding nomination of 
Professor Fletcher. I have said from the outset of Senator Kyl's effort 
that I would not hold up consideration of his bill but that I wanted an 
opportunity to note my opposition to it and to vote against it. Indeed, 
it was Senator Kyl who held his bill over for a week before it was 
considered before the Judiciary Committee.
  Despite the Committee reporting of the bill on May 21, 1998, the 
majority did not propose consideration of S. 1892 until Monday of this 
week, October 5, 1998. I responded without delay that I was prepared, 
as I had been all along, to enter into a short time agreement to be 
followed by a vote on the bill. Consistent with that undertaking I have 
noted my opposition and am prepared to vote.
  Madam President, I am willing to yield the remainder of the time and 
go to a vote.
  Mr. KYL. Madam President, I am happy to yield the remainder of my 
time and am prepared to vote.
  The PRESIDING OFFICER. The bill is before the Senate and open to 
amendment. If there be no amendment to be proposed, the question is on 
the engrossment and third reading of the bill.
  The bill (S. 1892) was ordered to be engrossed for a third reading, 
was read the third time, and passed as follows:

                                S. 1892

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. LIMITATION ON CLOSELY RELATED PERSONS SERVING AS 
                   FEDERAL JUDGES ON THE SAME COURT.

       (a) In General.--Section 458 of title 28, United States 
     Code, is amended--
       (1) by inserting ``(a)(1)'' before ``No person''; and
       (2) by adding at the end the following:
       ``(2) With respect to the appointment of a judge of a court 
     exercising judicial power under article III of the United 
     States Constitution (other than the Supreme Court), 
     subsection (b) shall apply in lieu of this subsection.
       ``(b)(1) In this subsection, the term--
       ``(A) `same court' means--
       ``(i) in the case of a district court, the court of a 
     single judicial district; and
       ``(ii) in the case of a court of appeals, the court of 
     appeals of a single circuit; and
       ``(B) `member'--
       ``(i) means an active judge or a judge retired in senior 
     status under section 371(b); and
       ``(ii) shall not include a retired judge, except as 
     described under clause (i).
       ``(2) No person may be appointed to the position of judge 
     of a court exercising judicial power under article III of the 
     United States Constitution (other than the Supreme Court) who 
     is related by affinity or consanguinity within the degree of 
     first cousin to any judge who is a member of the same 
     court.''.
       (b) Effective Date.--This Act shall take effect on the date 
     of enactment of this Act and shall apply only to any 
     individual whose nomination is submitted to the Senate on or 
     after such date.

  Mr. KYL. Madam President, I move to reconsider the vote.
  Mr. LEAHY. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. LEAHY. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Ms. SNOWE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Allard). Without objection, it is so 
ordered.

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