I think there is a say no card in here

First I'd like to express my gratitude to Judge Buckley and to Judge Ginsburg and to all the judges on the circuit for inviting me here. This is a great occasion for those of us who have been trying to look at these problems over the last several years. And I must say that I'm really heartened by the comments of Congressman Cardin and Judge Coffin as to the possibilities of improving relations between the Congress and the judiciary. My task, as Judge Buckley has noted, is *323 to look at statutory revision, to think in terms of ways in which Congress and the courts can interact in ways that promote the concerns of each.

And to that end I have, as Judge Buckley has noted, conducted a pilot project. My purpose here today is to briefly describe the methodology of this pilot project, the results of that project and then to offer some thoughts on the kinds of mechanisms appropriate to the task of improving communications between the branches.

First as to the methods, as you've just heard, we were able to secure, because of Judge Buckley's efforts, a random sample of some 20 cases from the judges of the circuit. Then we categorized those cases, as Judge Coffin has noted. From those categories of cases, some 20 cases in all, I then chose cases for individual case studies. What I tried to do in choosing from those four categories representing problems and gaps, ambiguities, glitches, and the ways in which the courts can alert Congress to possible problems, was to secure a wide range of congressional committees in the sample.

That is, I looked at pieces of legislation and the court cases interpreting that legislation and sought to make sure that I had a wide range of subcommittees and committees with jurisdiction over the legislation under court review. My thought was that congressional committees differ in the ways of their workings, in their institutional milieu. This might affect not only drafting but also the extent to which those committees and subcommittees are alert to judicial decisions.

Just to give you a sense of the committees included, the case studies involved the Subcommittee on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Committee, the House Subcommittee on Transportation, Tourism and Hazardous Materials of the Committee on Energy and Commerce, the Senate Committee on Finance, the House Subcommittee on Elections of the Committee on Administration, the House Subcommittee on Postal Operations of the Committee on Postal Operations and Services, the House Subcommittee on Health and Safety of the Committee on Education and Labor, the House Subcommittee on Monopolies and Commercial Law of the Committee on the Judiciary, the House Subcommittee on Civil Service and the House Subcommittee on Surface Transportation of the Committee on Public Works and Transportation.

What I did was to take some 15 cases, and for each case, compile basic legislative history materials. I sent those materials, along with the court opinions, to the relevant legislative staffers on the various committees. I then conducted interviews and discussions with these legislative staffers. You will, I think, find these findings remarkable, if not all that surprising.

First, I found that in 12 of the 15 cases the congressional committee's staffers were not aware of the court's decisions. Secondly, the staffs tend to be aware of cases when those cases are so-called major cases, that is, those cases in which the Supreme Court has resolved the matters or cases in which the losing party, for example, an interest group or trade organization seeks some sort of relief through the legislative process. Otherwise, the staff member is dependent upon what he or she *324 might glean from the summaries offered by a reporting service if he or she has the time or inclination to peruse them.

Thirdly, to the extent that there is an awareness of these decisions, the focus is on the court's ruling, on the outcome of the case, on that part of the opinion that is germane to the decision of the case. Parties seeking some relief are not likely to mention those parts of the opinion which do not bear directly upon the outcome-for instance, judicial suggestions that “congressional attention” might be in order as to some other aspect of the statutory scheme.

Now, another finding-and this was unanimous-is that the staffers to whom I spoke believe that they would very much benefit from receiving on a routine basis the opinions of the courts. Receiving such opinions, they feel, would be useful in determining whether statutory revision was in order. Moreover, such opinions could help inform the committees about the concerns that the courts have and make legislative staffers more sensitive to the problems of the drafting process. But by the same token, the staffs believed that it would be useful if the courts could be informed of the actions taken, if any, by Congress in response. That is, communication should be a two-way street.

I also found that just as the congressional staffs aren't always cognizant of what's going on in the courts, so anecdotal evidence suggests that the courts may not always know what responses have been made by the legislature.

I offer two cases in point. One is Daniels v. Wick, in which the D.C. Circuit determined whether the Foreign Services Act of 1980 permits the Foreign Service Grievance Board to order a tenured career appointment as a remedy for the violation of the rights of a nontenured, limited-term appointee. And in that case the court held that the act required that all career appointments had to be made upon the recommendation of a tenure board.

The legislative history is rather complex and the court did an excellent job in looking at that legislative history. At the root of all the problems of determining where the tenure decision should lie, was a conflict between the Foreign Affairs Committee and the Committee on the Post Office and Civil Service.

The Foreign Affairs Committee took a very restricted view in support of the Secretary of State's position about how tenure appointments should be awarded. The Committee on Post Office and Civil Service had a far more liberal view believing that all government workers should be afforded the same rights. Neither committee could come to any clear resolution; the problem was deliberately left in its muddled state; ultimately, and not surprisingly, it became a matter with which the courts would have to deal.

After the court's decision, the losing party approached the Committee on Post Office and Civil Service with the notion of trying to find some way to basically overturn the court's decision. At the suggestion of one of the subcommittee counsels, the lawyer got in touch with a member, Mervyn Dymally, who's a member of both the Committee on Post Office and Civil Service and the Foreign Affairs Committee. Dymally inserted *325 into the 1987 State Department authorizations bill a provision which essentially changed the court's decision as to what the law meant.

Having labored hard to make sense of an ambiguous statute, the court, I suspect, would have more than a passing interest in knowing of the legislative result.

A second example involves the interpretations of a statute as to the division of authority between the United States Court of Appeals for the Federal Circuit and other circuits. With respect to matters arising under the Little-Tucker Act, 28 U.S.C. § 1346 (1982).

The D.C. Circuit has had two cases in recent years dealing with that problem. At the same time that the court has been addressing it, Congress-and Mike Remington can address this issue-has been working on the issue. In fact, there's legislation pending that deals with some of the very same problems that the courts have confronted; yet, to my knowledge it is not at all clear whether the judges on the circuit have been made aware of such activity (at least one judge on the panels hasn't). It would seem undeniable that both branches would benefit from having some knowledge of each other's thinking on matters of such obviously mutual interest.

Now, as to mechanisms for statutory revision, we heard from Judge Coffin about a variety of proposals. Some have supported the notion of separate committees being created within each chamber to gather and distribute opinions to relevant committees. A variant of such a proposal would be to upgrade the office of law revision counsel in the House of Representatives, create another such entity in the Senate and vest each office with the responsibility of distributing the opinions to the committees.

I found in my interviews with the staffers, as I have noted, that there was a unanimous sense that some mechanism should be devised to improve interaction between the judiciary and Congress, that the mechanism should both be used to transmit opinions from the courts to the Congress and to transmit from the Congress to the courts whatever action was taken by the Congress. But there was also a sense that this should be done, if possible, without creating any new structures or entities within the Congress.

The view expressed to me was that the creation of such an entity was not necessary. The committees are loathe to cede any sort of power or any authority that they have exercised with respect to substantive legislation. They're also, I think, somewhat concerned about any legislative body that might be perceived as having an admonitory function. They are sensitive about having another body which would distribute opinions with a perceived underlying message: “Here is a problem that you didn't think of.” The committees and subcommittees don't very much care for such a message.

The task, it seems to me (at least in the first instance), is to create a low-visibility mechanism, preferably without the need for a new committee or structure within Congress, which would directly transmit opinions or suggestions to relevant congressional committees. That mechanism could conceivably be within the judiciary-the Administrative Office, the *326 Judicial Conference or the Federal Judicial Center. Alternatively, opinions could be sent directly by the judges themselves to the committees (though I found great uneasiness as to this last possibility). The distinct preference was for some independent, neutral entity which could transmit judicial opinions to congressional committees. At the same time, that entity could also monitor legislative action taken as a consequence of the courts' opinions, and makes such information available to the judiciary; ultimately, once the mechanism is perfected, it could be lodged permanently, perhaps within the judiciary.

I think that, whatever the precise mechanism chosen, this low-visibility device has some advantages.

One is that it has the virtue of feasibility. It is respectful of the institutional prerogatives of each branch. Neither branch has to be concerned about the other branch encroaching upon the other's turf. The mechanism promotes informed decision-making on the part of each branch and should be embraced by each. To the extent that the courts have a better sense of the legislative will, that is all to the good. And to the extent that a Congress can deal with some of the problems in statutes identified by the courts, the work load of the judiciary may be somewhat reduced.