Allard: How do we get judicial input without compromising their jobs since they may be involved with the statute later?

Katzmann: Come up with standards on what is and is not appropriate. Have technical questions answered, but do not discuss merits or interpretations of the

statute.

Norton: What do you do when legislative history is used to solve ambiguity?

Kozinski: You are talking about a situation when a committee report is used to clarify a statute ambiguity. The meaning of the statute that is passed on the floor is being changed with the use of the committee report. If we endorse the notion that you can use committee reports in this manner, do you retract power from Congress? The more pieces left for the Judiciary and Executive to play with, the less power Congress has. I have seen evidence of judges using legislative history to retract the intent of Congress.

Wald: My experience is that a small minority of cases where legislative history is used brings about a different meaning than the statute. Generally it confirms plain meaning or helps with ambiguity. Using legislative history is putting all the pieces on the table. It is better to have them and decide which are relevant rather than ignore them. You should never ignore any evidence.

Katzmann: If we ignore legislative history, we are increasing judicial power, not decreasing it. If words are ambiguous we should look at legislative history rather than give the court the power of decision. Without legislative history, the courts may have no idea what Congress meant. We should find a way of making it easier to use legislative history.

Kozinski: Who has more power? The judge with one choice, what the statute says, or the judge who carves a second option out of legislative history?

Norton: Where is what Congress wanted?

Kozinski: How do we know if legislative history is what was intended? The statute should be put more in statutory language and less in legislative history.

Norton: Mr. Katzmann, your work has been to lessen the strict separation of powers. Would you clarify how rigid the separation or powers was meant to be and what kind of relaxation we need to solve the problems we have been discussing?

Katzmann: The Constitution did not form separate institutions with power, but separate institutions sharing powers. As the institutions interact and effect each other, we must look at how they relate to each other. With statues, it makes sense that each branch should try to understand the other's work process. Court decisions, which are on public record, should be transmitted to the corresponding committee to let them see how courts interpret their work.

Norton: Mr. Kastenmeier, as a former Member now working on these issues, are we looking at greater difficulty in signalling what we mean or is it simply inherent in the way the institutions function?

Kastenmeier: There are some new differences. The institutions have grown in workload and numbers. Life is more complex; the issues are more technical. There are fewer people focusing on any one subject. We rely on small groups legislating on certain issues.

Norton: We must recognize that we are voting on concepts, not words.

SUMMARY OF OPTIONS FOR LEGISLATIVE JUDICIAL RELATIONS

I. IMPROVING COMMUNICATIONS.

A. Formal, structured meetings.

B. Less formal, periodic gatherings.

II. ADDRESSING THE INSTITUTIONAL INTERESTS OF THE JUDICIARY.

A. Provision of adequate judicial resources.

Attention to jurisdictional impact of legislation.

III. SERVING THE CONGRESSIONAL INTEREST IN JUDICIAL RELATIONS.

A. Institutionalizing congressional awareness.

B. Promoting institutional awareness of judicial requirements.

C. Judicial interpretation of legislative history.

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OPTIONS FOR IMPROVING LEGISLATIVE-JUDICIAL RELATIONS

Friction between the Legislative and Judiciary Branches is a function of the separation-of-powers/checks-and-balances system that the Framers gave us. For them, efficiency and cooperation were secondary to the resistance by each branch to the overtures and incursions of the other branches. The fact that there will always be conflict does not mean that there cannot be institutionalized and individualized efforts to promote better relations between the branches in many cases. What follows is an effort to conceptualize some of the possible means to this end and to note the benefits and difficulties attendant on them.

I. IMPROVING COMMUNICATIONS.

Many misunderstandings may be ameliorated or dissipated simply by creating channels of communications in which the participants may grow to understand better the ethos of the legislative or judicial worlds. Although there are matters that legislators and judges may not share and considerations that are off limits to one or the other group, no doubt many issues could be profitably discussed.

A. Formal, structured meetings.

Pro:

If there are to be meetings between judges and legislators, some
structure must be provided, so that "wheel spinning" is avoided.
Free time could be built in, so that individual interests could be
addressed. But there ought to be programs developed around
particular issues, and participants would be able to speak to
questions of mutual concern. Conferences could be scheduled in
Williamsburg at the Center for State Courts or at some other
"neutral" location.

Familiarizes legislators with judges' concerns and institutional interests and similarly informs judges. To the extent that conflict reflects lack of awareness rather than different interests, pacific results may follow.

Permits discussion in settings conducive to understanding of disputes and conflicts that may otherwise ripen into public controversies.

Con:

Legislators and judges are extremely busy individuals who often will not have time to take part in such meetings.

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Only a limited number of legislators will have the interests in
judicial matters generally that would cause them to wish to attend -
Judiciary Committee Members, for example. The interests of most
Members will be sporadic and issue specific.

Most judges may feel that they can't profit from such gatherings.

Will being better informed and mutually aware measurably improve relations?

There would be the potential for the appearance of impropriety at such gatherings. The attendees could be accused of lobbying each other, and Members of Congress could be accused of ex parte contacts with judges in ongoing litigation.

B. Less formal, periodic gatherings.

Pro:

Con:

If the first option is considered too utopian in concept, more restrained meetings where shared concerns could be discussed may be an option. Some gatherings already take place; for example, some Members of the Judiciary Committees meet with the judges attending the semi-annual Judicial Conference. Joint meetings of the two Committees with interested judges could be scheduled from time to time, and Members of Congress could be invited to judicial meetings.

These meetings would permit Members of Congress with the greatest personal and institutional interests access to judges in settings conducive to beneficial discussions and assure judges of the lack of possible impropriety.

In the context of the Judicial Conference, which formulates the policy positions of the federal judges, it would focus the spotlight on matters of greatest interest to both groups.

Much of what this proposal is designed to achieve may already occur, and formal creation of the mechanism would look like windowdressing.

Again, Judicial Conference gatherings are issue intensive, making meaningful interaction problematic. And they occur in March and September, when congressional schedules are full. Other judicial gatherings, circuit conferences, for example, are likely to be more convenient.