[Congressional Record Volume 144, Number 139 (Wednesday, October 7, 1998)]
[Senate]
[Page S11802]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


[[Page S11802]]
                           ANTI-NEPOTISM BILL

 Mr. KYL. Mr. President, I rise in support of S. 1892, the 
judicial anti-nepotism bill.
  Section 458 of 28 U.S.C. 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.'' There is some debate about the interpretation of 
section 458. Some hold the view that the statute means what it says--no 
person related to a judge of a court may be appointed to that same 
court. But some hold a contrary view. Indeed, in a 1995 memo by Richard 
Shiffrin of the Office of Legal Counsel, although the OLC conceded that 
the statutory language appears to restrict presidential appointments to 
offices or duties In federal courts, the OLC argued that the statute 
only applies to judges hiring or appointing persons to the courts. Many 
scholars disagree with this view and with the other memoranda issued by 
the Administration. Finally, there is also disagreement as to whether 
section 458 applies to appointments where a judge has taken senior 
status is a ``judge of such court.''
  For future judicial nominees, the Administration and the Senate must 
understand the criteria required for Article III judicial appointments. 
S. 1892 maintains the current prohibition on relatives of judges being 
appointed to or employed in any job of the court, such as for example, 
positions as clerks and bailiffs.
  S. 1892 amends 28 U.S.C. 458 to clarify that no person may be 
appointed to be a judge of a court if that person is related within the 
degree of first cousin to any judge, including a judge retired in 
senior status of that ``same court.'' Under the bill, ``same court'' 
means, in the case of a district court, any court of the same single 
judicial district; and, in the case of a court of appeals, the court of 
appeals of a single judicial district.
  For example, a person may not be a member of the Federal District 
Court in Arizona if a related person is already a member of the Federal 
District Court in Arizona, but related persons may serve simultaneously 
on federal district courts in Arizona and New Mexico. Additionally, 
related persons may serve simultaneously on the Northern and Eastern 
Federal District Courts in California. A person may not be a member of 
the 2nd Circuit if a related person is a member of that circuit, but 
related persons may serve on the 2nd and the 7th Circuits 
simultaneously.
  It is important to Note that this act does not apply to the Supreme 
Court.
  The act takes effect on the date of enactment and applies only to an 
individual whose nomination is submitted to the Senate on or after such 
date. Thus, the bill would not affect the nomination of William 
Fletcher.
  A thorough study of the constitutional provisions at issue, of the 
relevant case law, and of prominent legal treatises makes it clear that 
the bill is constitutional. Indeed, a March 31, 1998 report on the bill 
by the American Law Division of the Congressional Research Service has 
concluded that ``[a]fter consideration of the text of the Constitution, 
the precedents, and the historical practice, we believe it to be 
established that Congress has the authority to fix this and other 
qualifications for the office of judges of Article III courts. . . .'' 
The Constitution is, in fact, silent on what lower courts there were to 
be, their composition and jurisdiction, and their powers. Inasmuch as 
the Constitution ``delineated only the great outlines of the judicial 
power . . ., leaving the details to Congress, . . . ``[t]he 
distribution and appropriate exercise of the judicial power must . . . 
be made by laws passed by Congress. . . .'' Rhode Island v. 
Massachusetts, 12 Pet. (37 U.S.) 657, 721 (1838).
  The public policy behind Section 458 and S. 1892 is clear: For the 
public to maintain a sufficient level of confidence in the integrity 
and impartiality of its public institutions, those institutions must 
strive not only to avoid circumstances in which actual impropriety 
could arise among public servants, but to avoid all circumstances that 
create even the remote appearance of impropriety. Having close family 
members serve on the same court would create an appearance of 
impropriety. Of all the relationships that one judge could have to 
another--for example, former law partners or members of the same bench 
for 20 years--a familial relationship is one that is certain to 
automatically cause a litigant to question the impartiality of a judge.
  Litigants must have complete confidence that federal judges will be 
objective and impartial while on the bench. The institutional integrity 
of Federal courts requires scrupulous protection of public confidence 
in the judicial process. Preventing close family members from serving 
on the same court is a small price to pay to avoid a potential 
diminution of credibility and impartiality of the Judiciary, one of the 
Nation's most hallowed institutions.

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