[Congressional Record Volume 145, Number 113 (Wednesday, August 4, 1999)]
[Senate]
[Pages S10226-S10229]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SPECTER:
  S. 1484. A bill entitled ``Random Selection of Judges Act of 1999''; 
to the Committee on the Judiciary.


                 Random Selection of Judges Act of 1999

  Mr. SPECTER. Mr. President, I will speak very briefly on the 
introduction of legislation for the random selection of judges. I had 
thought when cases were assigned in the Federal courts they were 
assigned in a random fashion, unless they were related to some other 
case where a specific judge had jurisdiction and that judge would have 
the case by a related case assignment.
  During the course of the past week there has come to light a 
situation in the District of Columbia where the chief judge assigned 
specific judges to two very high-profile cases, one involving Mr. 
Webster Hubbell as a defendant and the other involving Mr. Charlie Trie 
as a defendant.
  My understanding of the practice has been that cases would be 
assigned on a random basis. In checking the specifics, I have found 
that the Judicial Conference, which is the policy-making body for the 
Federal Judiciary, only recommends that Federal courts randomly assign 
cases. It has not become a mandate to do so. I believe that public 
policy warrants having it as a mandate.
  It is customary for the Congress to legislate on matters of 
administration. For example, Congress has set a time limit under the 
speedy trial rule in the criminal courts. For another example, Congress 
has established time limits on Federal court habeas corpus cases where 
death penalty cases are appealed into the Federal courts.
  This is not a matter where we are talking about the discretion or 
judgment of an individual judge on how to decide a case, where judicial 
independence mandates that nobody make any suggestion to the judge as 
to how an individual case is to be decided. But as a matter of 
administrative policy it is entirely appropriate for the Congress to 
set the rules, one of which I think should be the random assignment of 
judges.
  In March of this year the Judicial Conference even rescinded its 28-
year-old policy that recommended giving the chief judges, the assigning 
judge, latitude to make special assignments of ``protracted, difficult, 
or wildly publicized cases,'' so such latitude is no longer recommended 
by the Judicial Conference.
  The chief judge of the District of Columbia has responded to the 
Associated Press article in a letter to the Washington Times dated 
August 2. I ask unanimous consent to have printed in the Record a copy 
of the newspaper article from the Washington Times, together with a 
copy of the response by the chief judge to the newspaper article.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                  Judges Fret Over Assigning of Cases


Fellow jurists are concerned that trials of Clinton friends went to his 
                               appointees

                             (By Pete Yost)

       The chief judge of the U.S. District Court bypassed the 
     traditional random assignment system to send criminal cases 
     against presidential friends Webster Hubbell and Charlie Trie 
     to judges President Clinton appointed, court officials said.
       U.S. District Judge Norma Holloway Johnson's decision to 
     abandon the longtime random computer assignment for high-
     profile cases has raised concerns among several other judges, 
     the officials said in interviews.
       The judges also raised concerns about an appearance of 
     possible conflicts of interest, because judges assigned the 
     cases were friendly with key players--presidential confidant 
     Vernon Jordan and defense lawyer Reid Weingarten--and made 
     rulings that handicapped prosecutors.
       Half a dozen judges, Republicans and Democrats, said they 
     have high regard for the ethics they have high regard for the 
     ethics and work of the two judges involved, Paul L. Friedman 
     and James Robertson, and do not believe they were improperly 
     influenced.
       But the judges, who spoke on condition for anonymity, said 
     they have discussed among themselves the public perception of 
     ignoring the random draw--used in almost all cases--and 
     passing over more experienced judges appointed by presidents 
     of both parties.
       One judge said his colleagues have discussed whether 
     assigning cases directly rather than using the random lottery 
     raises ``an appearance problem at least'' and ``whether there 
     has been impartial administration of justice.''
       The airing of the behind-the-scenes controversy provides a 
     rare window into a court process sealed from public view.
       Judges Johnson, Friedman and Robertson all declined 
     repeated requests for interviews.
       Judge Johnson, an appointee of President Carter, assigned:
       Judge Friedman to the Trie case, the first major 
     prosecution from the Justice Department probe of Democratic 
     fund raising. Mr. Clinton nominated Judge Friedman, a former 
     president of the local bar, in 1994.

[[Page S10227]]

       Judge Robertson was handed the Hubbell tax case, 
     independent counsel Kenneth Starr's first prosecution in 
     Washington. Judge Robertson is an ex-president of the local 
     bar and a former partner at the law firm of former White 
     House counsel Lloyd Cutler.
       Mr. Clinton nominated him in the last days of Mr. Cutler's 
     tenure as counsel in 1994. Judge Robertson had donated $1,000 
     to Mr. Clinton's 1992 presidential bid and has said he 
     ``worked on the periphery'' of that campaign.
       Judge Robertson on two occasions dismissed felony charges 
     against Hubbell. He dismissed the tax case against Hubbell, 
     who eventually pleaded guilty to a misdemeanor when an 
     appeals court reinstated the case.
       Judge Johnson allowed a later indictment--charging Hubbell 
     with lying to federal regulators--be assigned at random by 
     computer. By coincidence, the computer picked Judge 
     Robertson, who threw out the central felony count in the 
     case. Judge Robertson, who threw out the central felony count 
     in the case. Hubbell pleaded guilty to that same felony count 
     June 30, after an appeals court reversed Judge Robertson.
       One politically sensitive aspect of the Hubbell tax evasion 
     indictment was a reference to a $62,500 consulting 
     arrangement that Mr. Jordan helped obtain for Hubbell, making 
     Mr. Jordan a potential witness.
       Judge Robertson and Mr. Jordan are friends from their days 
     in the civil rights movement. Mr. Jordan did not return 
     repeated calls seeking comment.
       [Judge Robertson, who was highly critical of Mr. Starr's 
     tactics in the Hubbell case, also dealt major setbacks to 
     Donald Smaltz, the independent counsel who investigated 
     former Agriculture Secretary Mike Espy.
       [In one instance, the judge granted a new trial to a Tyson 
     Foods Inc. executive, Jack L. Williams, who had been 
     convicted on two counts of making false statements to federal 
     investigators.
       [Last September, Judge Robertson overturned the conviction 
     of Tyson lobbyist Archie Schaeffer III for giving illegal 
     gifts to Mr. Espy. A federal appeals court reinstated that 
     conviction July 23.]
       Judge Johnson assigned the Trie case and two subsequent 
     cases against Democratic fund-raisers to Judge Friedman, who 
     tossed out various charges.
       After one of Judge Friedman's rulings was overturned on 
     appeal, Trie agreed to plead guilty.
       Judge Friedman and Mr. Weingarten, the defense lawyer in 
     two of three fund-raising cases before Judge Friedman, are 
     longtime friends.
       ``He's a professional friend, but he's a judge now,'' Mr. 
     Weingarten said. ``These relationships change when somebody 
     goes to the bench.''
       When Judge Johnson bypassed the random draw for these 
     cases, 12 full-time judges were on the federal court, seven 
     of them Clinton appointees. Four were Republican appointees. 
     The court also has a number of senior judges who work part-
     time.
       Judge Johnson garnered headlines for her rulings against 
     Mr. Clinton in the Monica Lewinsky scandal, rejecting 
     privilege claims by the president and ordering White House 
     lawyer Bruce Lindsey and Secret Service personnel to testify.
       Experts said the assignments to Clinton-nominated judges 
     did not violate any rules but could shake public confidence.
       ``As far as assigning a recently appointed judge of the 
     same party, it's dangerous, it's risky, it's hazardous 
     because the outcome might support the cynical view that the 
     judge did not decide the matter on the merits even though 
     that may be the furthest thing from the truth,'' Columbia 
     University law professor H. Richard Uviller said.
       New York University law professor Stephen Gillers said, 
     ``If the case is high-profile, that should increase the 
     presumption in favor of random selection.''
       The assignments were confirmed to AP by several court 
     officials with access to parts of the court computer system 
     not available to the public.
       Local court rules give Judge Johnson the right to assign 
     ``protracted'' cases to specific judges, although nearly all 
     the cases in U.S. District Court here are assigned by 
     lottery, court officials said.
       The Judicial Conference, the policy-making body for the 
     federal judiciary, recommends that federal courts randomly 
     assign cases. In March, the conference rescinded its 28-year-
     old policy that recommended giving chief judges latitude to 
     make special assignments of ``protracted, difficult or widely 
     publicized cases.''
       Actual practice varies from court to court.
       In the Southern District of New York, which has more than 
     two dozen full-time judges, Court Executive Clifford P. 
     Kirsch said, ``It's all been by a blind draw . . . so it 
     doesn't appear anyone is preselecting or favoring one judge 
     over another judge.''
                                  ____

                                           U.S. District Court for


                                     the District of Columbia,

                                   Washington, DC, August 2, 1999.
     Editor,
     The Washington Times,
     Washington, DC.
       As I firmly believe that justice is best served in the 
     courts of law and not on the front page of a newspaper, it 
     has long been my policy not to discuss my judicial decision-
     making with members of the press. However, I feel compelled 
     to make an exception to that policy in order to correct the 
     disturbing misimpression left by a recent story circulated by 
     the Associated Press and published in your paper as well as 
     several other news outlets. [This A.P. article alleges that I 
     ``bypassed the traditional random assignment system'' to 
     assign certain criminal cases to judges appointed by 
     President Clinton, singling out the criminal case against Yah 
     Lin ``Charlie'' Trie, which was assigned to Judge Paul L. 
     Friedman, and the criminal case against Webster Hubbell, 
     which was assigned to Judge James Robertson. The article 
     implies that these cases were assigned to these judges based 
     on political motivations. This unsubstantiated assertion 
     could not be further from the truth.] Moreover, it does a 
     significant disservice to the perception of impartial justice 
     that I believe all of the judges on our Court strive mightily 
     to maintain. Contrary to the false perception left by the 
     A.P. story, these cases were assigned to highly capable 
     federal judges. Politics was not and is never a factor in our 
     case assignments.
       In order to set the record straight, the circumstances 
     leading to these routine ``special assignments'' are quite 
     simple. For years, Local Rule 403(g) of the Rules of the 
     District Court for the District of Columbia has authorized 
     the Chief Judge to specially assign protracted or complex 
     criminal cases to consenting judges when circumstances 
     warrant. My predecessors and I have used this assignment 
     system to enable our Court to expeditiously handle high 
     profile criminal cases with their unique demands on judicial 
     resources. For example, criminal cases arising from Watergate 
     and the Iran-Contra affair were handled through special 
     assignment. In both those instances of overwhelming media 
     scrutiny and complexity, the special assignment system well 
     served our needs. In addition to these highly publicized 
     criminal cases, special assignment has also been a valuable 
     tool in addressing multiple defendant narcotics conspiracy 
     cases. It is the responsibility of the Chief Judge to move 
     the docket as expeditiously as possible. That is all that was 
     intended by these assignments.
       Finally, I must note that the A.P. article irresponsibly 
     impugns the reputation of two fine federal judges by 
     suggesting conflicts of interest in their handling of these 
     cases. Neither judge had any obligation to recuse himself 
     from the cases to which he was assigned, for neither faced a 
     conflict of any sort. A judge's prior affiliations and 
     acquaintances, alone, do not require recusal or 
     disqualification. Indeed, many judges on this Court know many 
     lawyers and public officials in Washington. If recusal were 
     required on the basis of these innocuous connections, it 
     would wreak havoc on case scheduling.
       In the future, I suggest that before your newspaper prints 
     a story that impugns the integrity of two outstanding members 
     of the federal judiciary, you offer more evidence of an 
     actual conflict than the slender reed of innuendo which 
     supports these current allegations. Such an unsubstantiated 
     and unsupportable attack does your publication little credit 
     and the truth much harm.
           Sincerely,
                                           Norma Holloway Johnson,
                                                      Chief Judge.

  Mr. SPECTER. In the reply, the chief judge says this:

       This A.P. article alleges that I ``bypassed the traditional 
     random assignment system'' to assign certain criminal cases 
     to judges appointed by President Clinton, singling out the 
     criminal case against Yah Lin ``Charlie'' Trie, which was 
     assigned to Judge Paul L. Friedman, and the criminal case 
     against Webster Hubbell, which was assigned to Judge James 
     Robertson. The article implies that these cases were assigned 
     to these judges based on political motivations. The 
     unsubstantiated assertion could not be further from the 
     truth.

  Now, I do not question the statements made by the chief judge in 
denying any portion of partiality or impropriety, but I do believe that 
when this case is called to widespread public attention the Congress 
ought to act. That is why I am introducing this legislation today on 
behalf of myself and Senator Hatch, chairman of the Judiciary 
Committee.
  The reasons for this legislation are articulated by Columbia 
University law professor H. Richard Uviller, who said:

       As far as assigning a recently appointed judge of the same 
     party, it's dangerous, it's risky, it's hazardous because the 
     outcome might support the cynical view that the judge did not 
     decide the matter on the merits even though that may be the 
     furthest thing from the truth.

  A similar statement was made by New York University law professor 
Steven Gillers, who said:

       If the case is high-profile, that should increase the 
     presumption in favor of random selection.

  This issue of random selection is one that I feel particularly 
strongly about based on my experience as district attorney in the 
Philadelphia criminal courts. When high-profile or politically-tinged 
cases were filed in the criminal courts of Philadelphia during my 
tenure as district attorney, I routinely asked for a jury trial because 
I

[[Page S10228]]

wanted the facts decided by an impartial fact finder. At the outset of 
that tenure in January of 1966, the Commonwealth was a party to the 
proceeding and, like the defendant, had a right to demand a jury trial. 
I did demand jury trials because I found that the assignment to 
specific judges was not random and did on some occasions have 
inappropriate motivations.
  During the course of my tenure as district attorney, the State 
supreme court made a change in the criminal rules and took away the 
right of the district attorney to demand a jury trial. That was 
recently reinstated by a constitutional amendment so that the 
experience I have seen requires a very heavy emphasis on the random 
selection.
  During my tenure as district attorney, we reformed the entire minor 
judiciary of Philadelphia known as magistrates because of widespread 
corruption and inappropriate practices in that judicial system. While 
this in no way reflects upon the Federal courts of the United States, 
which I think are of uniformly high quality, I do believe that the 
principle of random selection of judges is a very important principle. 
I do believe there ought to be an exception if there is a related case; 
that is, where a judge was assigned a case on a random basis and 
another matter comes in where there are very similar, if not identical, 
questions of fact and questions of the parties. But this legislation 
removes at least the appearance and the question that there may be some 
collateral motivation.
  To reiterate, I seek recognition today to introduce the Random 
Selection of Judges Act of 1999, a bill which will require that cases 
in Federal court be assigned to judges randomly, by means of a computer 
program. I believe that only the random assignment of cases to judges 
will ensure blind justice in our courts.
  This power to assign cases creates the potential for abuse. An 
assigning judge who is so inclined could attempt to alter the outcome 
of a case by assigning it to a judge who, in the opinion of the chief 
judge, holds a ``correct'' view on the issue at hand.
  A story recently in the news clearly demonstrates the potential for 
abuse under the current system. Over the weekend, the Associated Press 
reported that Judge Norma Holloway Johnson, Chief Judge of the District 
Court for the District of Columbia, bypassed the traditional random 
computer assignment system in her court and instead directly assigned 
criminal cases against certain presidential friends to judges appointed 
by President Clinton. Specifically, the campaign finance case against 
Charlie Trie was assigned to Judge Paul L. Friedman, and the tax cases 
against Webster Hubbell were assigned to Judge James Robertson. 
According to the news reports, Judge Johnson's decision to abandon 
random assignment in these high profile cases raised concerns among 
several other judges on her court. It was also reported that these 
judges raised concerns because Judge Robertson is friends with Vernon 
Jordan, who played a role in the Hubbell affair, and Judge Friedman is 
friends with Reid Weingarten, who represents the defendants in two 
fundraising cases before Friedman.
  According to the Associated Press article, it has been asserted by 
some that Judge Johnson assigned these cases to Clinton appointees 
because they would be more sympathetic to the President and his friends 
than Republican appointees who may have gotten the cases through random 
assignment. Judge Johnson has denied any political or other improper 
motive in a letter to the Washington Times. The fact is that Judge 
Johnson herself issued a number of rulings against President Clinton, 
including her rulings rejecting privilege claims by White House lawyer 
Bruce Lindsey and the Secret Service. But no matter what Judge 
Johnson's motives, her actions make quite clear that, under the current 
system, the potential for abuse does exist.
  Currently, the Judicial Conference, which is the policymaking body 
for the federal judiciary, recommends that Federal courts randomly 
assign cases. In fact, in March the conference even rescinded its 28-
year-old policy that recommended giving chief judges latitude to make 
special assignments of ``protracted, difficult, or widely publicized 
cases.'' But there is still no requirement that Federal courts randomly 
assign cases. The problem with mere recommendations is that they can be 
ignored. If we believe that cases should be randomly assigned, then we 
must require that cases be randomly assigned.
  My bill imposes such a requirement. Under my bill, the chief judges 
of the Federal district and circuit courts must assign cases by means 
of an automated random assignment program. Recognizing that there are 
some instances in which it would serve the interests of efficiency to 
allow the chief judges to directly assign cases to specific judges, my 
bill includes two important exceptions to the random assignment 
requirement. First, chief judges will be permitted to directly assign a 
case to a judge who has already heard a related case. A related case is 
defined as one which involves substantially the same facts, individuals 
and/or property as a case previously before the court. For instance, a 
case against a defendant in a bank robbery could be directly assigned 
to a judge who already heard the case against another defendant in the 
same bank robbery.
  Secondly, chief judges will be permitted to directly assign a 
technical case to a judge who is already familiar with the subject 
matter at issue. Technical cases are defined as those which involve 
specialized, unusually complex facts or subject matter and which would 
demand a great deal of time to master. For example, an asbestos 
liability case could be directly assigned to a judge who has already 
developed an expertise in handling asbestos liability cases.
  While Congress should not micro-manage the Courts, the legislation I 
introduce today is reasonable, limited, and well within our power. 
Article 1, Section 8, Clause 9 of the Constitution gives Congress the 
power to ``constitute Tribunals inferior to the supreme Court.'' 
Pursuant to this power, Congress established the Federal circuits and 
originally assigned Supreme Court justices to ride these circuits. 
Under this power, Congress eventually established the Federal district 
courts and outlined their jurisdiction. The sections of the Federal 
Code I seek to amend today--which permit the assignment of judges in 
accordance with court rules--were themselves Congressional enactments. 
Even in recent years, Congress has imposed restrictions on the 
procedures of the courts. For example, the Anti-Terrorism Bill of 1996 
contained a provision I authored to reform habeas corpus. This 
provision imposes strict time limits on both the filing of habeas 
corpus petitions and the response by the courts to such petitions. 
Likewise, many bills we pass include requirements that certain cases be 
heard by the Courts on an expedited basis.
  Mr. President, I feel strongly that my bill should not become a 
partisan issue. As I mentioned before, one's opinion of Judge Johnson 
and her actions is entirely beside the point. Judge Johnson's reported 
actions merely make us aware of the potential for abuse in our current 
system and the need to rectify it. I hope my colleagues will join me in 
supporting this necessary, common-sense legislation.
  I ask unanimous consent that the bill be printed.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                                S. 1484

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

     SECTION 1. SHORT TITLE.

       (A) Short Title.--This act may be cited as the ``Random 
     Selection of Judges Act of 1999.''

     SECTION 2. ASSIGNMENT OF CASES IN DISTRICT COURT.

       Title 28, United States Code is amended--
       (1) in section 137 as follows:
       (A) By adding the words, ``Except as provided below,'' at 
     the beginning of the first paragraph.
       (B) By deleting the words ``and assign in cases'' in the 
     middle of the second paragraph.
       (C) By inserting the following new paragraphs at the end of 
     the section:
       ``Except as provided below, the chief judge of the district 
     court shall assign all cases by means of an automated random 
     assignment program provided by the Administrative Office of 
     the United States Courts.
       ``Notwithstanding the foregoing, the chief judge of the 
     district court may directly assign related cases and 
     technical cases to a specific judge without using the 
     automated random assignment program. The chief judge may 
     directly assign a related case only to a

[[Page S10229]]

     judge who is hearing or has heard a case or cases to which 
     the new case relates. The chief judge may directly assign a 
     technical case only to a judge who has significant experience 
     with the subject matter at issue.
       ``For purposes of this section, a ``related case'' is a 
     case which involves substantially the same facts, 
     individuals, and/or property as a case previously or 
     contemporaneously before the court.
       ``For purposes of this section, a ``technical case'' is a 
     case which involves specialized, unusually complex facts or 
     subject matter and which would demand a significant 
     investment of time for a judge to master.''

     SECTION 3. ASSIGNMENT OF CASES IN CIRCUIT COURT.

       Title 28, United States Code is amended--
       (1) in section 46 as follows:
       (A) By adding the words, ``in accordance with the 
     procedures outlined in Section 46(e),'' at the end of Section 
     46(a).
       (B) By adding the words, ``In accordance with the 
     procedures outlined in Section 46(e)'' at the beginning of 
     Section 46(b).
       (C) By inserting the following new Section 46(e) at the end 
     of the section:
       ``Except as provided below, the chief judge of the circuit 
     court shall assign all cases by means of an automated random 
     assignment program provided by the Administrative Office of 
     the United States Courts.
       ``Notwithstanding the foregoing, the chief judge of the 
     circuit court may directly assign related cases and technical 
     cases to a specific judge or judges without using the 
     automated random assignment program. The chief judge may 
     directly assign a related case only to a judge or judges who 
     are hearing or have heard a case or cases to which the new 
     case relates. The chief judge may directly assign a technical 
     case only to a judge or judges who have significant 
     experience with the subject matter at issue.
       ``For purposes of this section, a `related case' is a case 
     which involves substantially the same facts, individuals, 
     and/or property as a case previously or contemporaneously 
     before the court.
       ``For purposes of this section, a `technical case' is a 
     case which involves specialized, unusually complex facts or 
     subject matter and which would demand a significant 
     investment of time for a judge to master.''
                                 ______