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Courts and Congress


What role should the Senate play in the selection and confirmation of judges? What criteria should be used to evaluate nominees? What kinds of questions and answers are appropriate in confirmation hearings? What problems do judges face as they interpret laws enacted by Congress? And what kinds of communications are proper between judges and legislators? Drawing on the world of scholarship and from personal experience, Robert A. Katzmann examines governance in judicial-congressional relations. After identifying ...
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What role should the Senate play in the selection and confirmation of judges? What criteria should be used to evaluate nominees? What kinds of questions and answers are appropriate in confirmation hearings? What problems do judges face as they interpret laws enacted by Congress? And what kinds of communications are proper between judges and legislators? Drawing on the world of scholarship and from personal experience, Robert A. Katzmann examines governance in judicial-congressional relations. After identifying problems, he offers ways to improve understanding between the two branches.
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Editorial Reviews

Stefanie A. Lindquist
The series of decisions handed down by the Supreme Court this last Term marked a substantial restructuring of congressional power vis-a-vis the states and the federal judiciary. Given these recent judicial pronouncements restricting the scope of congressional authority, Robert A. KatzmannÆs new book is most timely. In COURTS AND CONGRESS, Professor Katzmann assesses the ongoing relations between the two branches. While interdependent, the two branches nevertheless often misunderstand each otherÆs institutional processes and demands. According to Katzmann, this lack of understanding and communication creates interbranch tensions and undermines the efficiency and efficacy of both institutions. In addition to historical and theoretical discussions of a range of topics, including the appointment process and statutory interpretation, COURTS AND CONGRESS proposes practical reforms to facilitate interbranch communications--both to achieve more effective public policies and to enhance the efficiency of our judicial system. To this task, the author brings insights developed through his participation in various legislative hearings on matters involving the judiciary, through his role as special counsel to a Supreme Court nominee, and through his work as director of a project concerning statutory interpretation and interbranch communication. His detailed authorÆs preface and list of acknowledgments read like a "whoÆs who" of Capital Hill and the federal judiciary. COURTS AND CONGRESS is essentially comprised of three sections addressing: (1) theories of statutory interpretation and methods to improve the communication of legislative intent; (2) possibilities for improving the communication of judgesÆ institutional concerns to Congress; and (3) interbranch tensions inherent in the judicial confirmation process and proposals to streamline and depoliticize the process. As this brief synopsis may suggest, the book focuses primarily on practical reforms intended to enhance cross-institutional communications and relations, rather than on extensive theoretical explanations or empirical assessments of judicial-legislative interactions. In my view, the discussion of statutory interpretation and legislative intent forms the core of the book. According to the author, statutory interpretation is a potential source of tension or conflict in judicial-congressional relations, "for how the judiciary interprets legislation is bound to affect CongressÆs perceptions of the courts." Katzmann reviews and critiques a number of theories of legislation and statutory interpretation developed by jurists and scholars, with his objective to determine whether and how judges should rely on legislative history when interpreting statutes. In particular, he considers canons of statutory construction, public interest theory, public choice theory, positive political theory, and plain meaning. Ultimately, while recognizing some merits in each, he dismisses them all--either in whole or substantial part--in favor of the "contextual approach." According to this approach, legislative history is viewed as critical to effective interpretation of ambiguous or poorly drafted statutes, but should be approached with "a hopeful skepticism" (quoting Justice Ginsburg). Having determined that legislative history is a "necessary component of judicial inquiry," Katzmann proposes ways in which Congress can clarify legislative meaning. Among several practical solutions, he suggests that the offices of legislative counsel prepare checklists to focus legislatorsÆ attention on matters often overlooked in the drafting process (such as private rights of action or exhaustion of remedies). He also recommends that Congress identify "authoritative legislative histories" before billsÆ final passage--proposing that floor managers "reach some shared understanding as to which floor statements and colloquies should be given weight" by the courts. Finally, he suggests that judges may even testify before Congress regarding revisions to statutes that required interpretation in prior litigation. In addition to these proposals, Katzmann reports on an "ongoing experiment" in interbranch communication sponsored by the D.C. Circuit Judicial Conference and the Governance Institute. Under this new program, the D.C. Circuit chief staff counsel transmits opinions identifying perceived problems with statutes to congressional leadership and important staff personnel. The impact of this program has not yet been systematically evaluated, but the hope is that it will aid legislators in drafting better statutes. In addition to these practical solutions to problems raised in the interpretive process, Professor Katzmann also addresses additional ways to "build bridges" and facilitate direct communication between the branches on other matters affecting the courts. He reviews possible constitutional and ethical restrictions on judgesÆ ability to testify before Congress or otherwise communicate their concerns directly to legislators. He also addresses the role various governmental organizations, such as the U.S. Judicial Conference, could serve as "conduits of communication." In addition to more structured modes of communication, Professor Katzmann envisions ongoing exchanges through somewhat less formal means, such as seminars, conferences, lectures or dinners attended by judges, legislators, and their staffs. Finally, as noted above, COURTS AND CONGRESS also addresses one other possible source of tension between the two branches: the increasingly politicized and contentious confirmation process. Focusing on Supreme Court nominees, Katzmann reviews the history of Supreme Court appointments since 1922. He highlights the inherent tensions that exist between nomineesÆ reluctance to respond to senatorial questions that may undermine judicial independence and impartiality, and SenatorsÆ desire to exercise their constitutional prerogative to participate in the confirmation process. Ultimately, he endorses the conventional view that nominees should respond to questions concerning their approaches to decision making and their opinions about "settled" areas of the law. As for interest group participation, Katzmann condemns the use of television and radio advertisements that offer "sound-bite attacks on the nomineeÆs purported views." As a remedy, he recommends that interest groups develop a set of voluntary norms regarding the use of media advertising to reduce "lapses in fairness." In large part, political scientists familiar with the literature on the confirmation process will find little new here. Although it addresses weighty topics, COURTS AND CONGRESS is a slim volume. From one perspective, the bookÆs brevity is commendable. For example, Professor KatzmannÆs synopsis of the various approaches to statutory interpretation is accessible and provides a concise introduction for the uninitiated. For those interested in more comprehensive coverage of any particular approach, the author has provided thorough footnoting to the most influential books and articles in the field. Similarly, the transformation of the Supreme Court appointment process over the last seventy-five years is condensed to less than twenty pages, yet offers enough detail to convey the dynamic nature of the process. Finally, to the extent this book is a type of "policy manual," a streamlined approach may be more pragmatic. Perhaps because of the rather grand title, however, my appetite was whetted for a more thorough theoretical and empirical explication of the ways in which Congress and the courts interact. Again, this may not have been the authorÆs objective. Nevertheless, there are a number of places where the authorsÆ propositions would have benefited from further empirical foundation, whatever the bookÆs objective. For example, while a litany of quotes from jurists and others attest that interbranch communication is wholly inadequate, the book provides no empirical, systematic evaluation of the detrimental consequences of this mutual ignorance. At the least, some thorough case studies would have been helpful in illustrating more fully how this lack of understanding actually threatens effective governance. Moreover, the feasibility of the proposed reforms is rarely discussed. The recommendation that Congress clarify legislative intent by completing "authoritative legislative histories," for example, would add yet another contentious issue to an already ponderous process. Besides the Civil Rights Act of 1991, which is accompanied by such an authoritative history (cited by the author), are there any other examples of such an agreement? How likely is it that legislators can regularly agree on the "authoritative legislative history" prior to passage of their enactments? These concerns highlight the need for increased empirical, behavioral research in the area of judicial-legislative relations generally. In fairness, Katzmann acknowledges the need for additional research to explore the issues raised in COURTS AND CONGRESS. He observes that the book may serve as a starting point for such empirical studies: "Social scientists who seek to build empirical theories of legislative-judicial behavior can use these tentative findings to formulate and test more realistic hypotheses" (p.80). And some researchers are pursuing research in related areas; studies by Meernik and Ignagni (1997, 1995) come immediately to mind. Thus, while COURTS AND CONGRESS may not shed much light on congressional-judicial relations from an empirical standpoint, it may serve to generate research that does so. And the book will surely provide a starting point for discussions among policy-makers and judges about how best to improve interbranch relations, which should ultimately redound to the benefit of Congress, the judiciary, and the public. REFERENCES Meernik, James and Joseph Ignagni. 1997. "Judicial Review and Coordinate Construction of the Constitution." AMERICAN JOURNAL OF POLITICAL SCIENCE 41:447-467. Meernik, James and Joseph Ignagni. 1995. "Congressional Attacks on Supreme Court Rulings Involving Unconstitutional State Laws." POLITICAL RESEARCH QUARTERLY 48:43-59.
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Product Details

  • ISBN-13: 9780815748663
  • Publisher: Brookings Institution Press
  • Publication date: 4/28/1997
  • Pages: 163
  • Product dimensions: 6.31 (w) x 9.30 (h) x 0.74 (d)

Table of Contents

1 Courts, Congress, and the Challenges of Governance 1
2 Advice and Consent 9
3 Approaching Statutes: Theory and Practice 46
4 An Experiment in Statutory Communication 69
5 Building Bridges across the Communications Gulf 82
6 What Lies Ahead 107
Notes 115
Index 155
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