May 14, 1997

Prepared Statement of

Professor Arthur D. Hellman

Mr. Chairman and members of the Subcommittee, I appreciate this opportunity to express my views on H.R. 1252, the Judicial Reform Act of 1997. This legislation incorporates five distinct measures for improving the administration of justice in the federal courts. In this statement I shall concentrate on the first of the proposals ­ the three-judge court requirement for certain injunctions ­ and comment briefly on three others.

By way of personal background, I am a professor at the University of Pittsburgh School of Law. As a scholar, I have published numerous articles on the work of the federal courts, including "The Shrunken Docket of the Rehnquist Court" in the 1996 volume of the Supreme Court Review (University of Chicago Press). With the Federal Judicial Center, I conducted a study of unresolved intercircuit conflicts that was requested by Congress in the Judicial Improvements Act of 1990. Currently I serve as chair of the Civil Justice Reform Committee of the American Judicature Society. Of course, I speak only for myself in these remarks today.

I. Background: Supremacy and Federalism ­

and Legitimacy in Judicial Review

In the landmark case of Ex parte Young, 209 U.S. 123, decided in 1908, the United States Supreme Court upheld the authority of a federal court to enjoin the enforcement of a state statute that was challenged as violating federal constitutional rights. Ever since then, "controversy [has] centered on the power of a single federal judge to stop state legislation in its tracks."⁽²⁾

Not surprisingly, Congress has acted from time to time to limit the exercise of judicial power authorized by Ex parte Young. The bill now under consideration by this Subcommittee follows in that path. Two of its provisions are directed specifically at Ex parte Young actions. One would require the convening of a three-judge district court for a narrowly defined subset of injunctive actions: those in which the target is "a State law adopted by referendum." A second provision would limit federal court power to require states or their political subdivisions to impose taxes. The other three measures would apply to broader classes of litigation.

In addressing the merits of these proposals, I start with some basic premises. The first is that federal judicial review of the constitutionality of state laws plays a vital role in preserving the balance between state power and federal supremacy. In particular, as then-Justice Rehnquist put it, "the availability of prospective relief of the sort awarded in Ex parte Young gives life to the Supremacy Clause. [Such remedies] are necessary to vindicate the federal interest in assuring the supremacy of [federal] law." Green v. Monsour, 474 U.S. 64, 68 (1985).

At the same time, invalidation of state laws by federal courts remains a source of strain and tension in a democratic society. Within two years of the decision in Ex parte Young, one Senator protested that "there are 150 cases of this kind now where one federal judge has tied the hands of the state officers, the governor, and the attorney general. * * * Whenever [that happens], * * * a public sentiment is stirred, * * * and you find the people of the State rising up in rebellion."

Today feelings seldom run that high, in part because of the constraints that Congress and the courts themselves have placed on the exercise of judicial review. Unfortunately, recent events have raised new doubts about the fairness of the process. Supporters of California's Civil Rights Initiative have accused a federal district judge of hijacking the case in order to strike down the law. Opponents of the measure have claimed in turn that three judges on the court of appeals violated procedural norms in order to uphold the law.

To maintain the constitutional balance, it is essential to preserve the legitimacy of judicial review. This means that the process by which federal courts adjudicate the constitutionality of state laws must be fair, and it must be seen to be fair. Under the Constitution, Congress has the responsibility for defining the structures through which the decisions are made. These hearings are an appropriate first step in exercising that responsibility.

II. Requirement of a Three-Judge Court for Certain Injunctions

Section 2 of H.R. 1252 would require the convening of a three-judge district court for suits seeking injunctive relief against the enforcement or operation of state laws adopted by referendum. A similar measure was approved by the House in the 104th Congress as a standalone bill, H.R. 1170 (passed Sept. 28, 1995). The bill has been reintroduced in the 105th Congress, again as H.R. 1170.

This legislation raises several difficult issues. Should suits that challenge state laws adopted by referendum be treated differently from other Ex parte Young suits? If so, is the three-judge court requirement a desirable solution? If not, what alternatives might be preferable? I turn now to those questions.

A. Laws adopted by referendum versus laws enacted by legislatures

From 1910 through 1976, a three-judge court was required in any suit seeking an injunction against the enforcement of a state statute on grounds of federal unconstitutionality. The statute was substantially amended in 1976, and today the requirement applies only in two classes of cases: "when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body," and "when otherwise required by Act of Congress." The latter category is confined largely to suits under the Voting Rights Act of 1965, although it now includes some prisoner suits under the Prison Litigation Reform Act of 1995. The question raised by H.R. 1252 is whether actions seeking to enjoin laws adopted by referendum warrant similar treatment.

The answer is not self-evident. Within the limits of the Constitution, each state chooses for itself the means by which its laws will be made. Further, the method actually used within a given state will vary from issue to issue. Suppose, for example, that a movement arises throughout the nation to ban smoking in all public places. State A adopts a no-smoking law through popular initiative. State B has a constitution that allows for lawmaking by initiative, but before the proposal is placed on the ballot, the legislature, spurred by the petition drive, enacts a bill and the governor signs it. State C does not have an initiative process, but the proposed smoking ban is the principal issue in an off-year legislative election, and a new majority, elected on a no-smoking platform, moves promptly to enact the measure in accordance with the legislators' campaign promises to the people.

Suppose now that the three states' laws ­ identical in content ­ are challenged in federal court. Under H.R. 1252, the challenge to State A's law would be heard initially by a court of three judges; the other states' laws would be considered by a single judge. Is it appropriate for State A's law to receive different treatment because of the different means by which it was adopted?

When the House considered H.R. 1170 in the 104th Congress, opponents argued for a negative answer. They took the position that "Congress has no business" making the judgment "that a state law enacted by a ballot measure is somehow more worthy than a state law enacted by a state legislature."

To begin with, the question is not whether one kind of state law is, in the abstract, "more worthy" than another. The question is whether a particular procedural arrangement ­ initial hearing by a three-judge court ­ is warranted for laws adopted by ballot measures but not for ordinary legislation. Strong arguments can be made that it is.

In the pathbreaking case of Baker v. Carr, 369 U.S. 186 (1962), judicial intervention into the reapportionment of a state's legislature was justified on the ground (among others) that the people of the state had "no practical opportunities for exerting their political weight at the polls" to correct a policy that a majority believed to be invidious. Id. at 259 (Clark, J., concurring). If we turn the argument around, we can say that when the people do take direct action to establish state policy, the federal courts should exercise particular restraint in upsetting their determinations. A three-judge court requirement would have that effect, because it would require the concurrence of at least two judges before the state policy could be set at naught.

A thoughtful and comprehensive analysis by the late Professor Julian Eule, although not addressing the question directly, points in the same direction. Professor Eule described the numerous "filters" that are absent when laws are enacted through direct democracy. He concluded that such laws should receive a "harder look" from courts reviewing their constitutionality. But he also recognized the special dangers that arise when courts strike down ballot measures:

It is one thing for a court to undertake the task of protecting the people from their government and quite another to protect the people from themselves. . . . Precisely because judicial actions regarding ballot measures are highly visible, there is a substantial danger that these decisions will engender popular cynicism to a degree not ordinarily found when courts toil unseen in the legislative vineyards.

This analysis suggests two complementary justifications for requiring a three-judge district court for review of ballot measures but not for ordinary legislation. If the ballot measure is upheld, the imprimatur of at least two judges will reassure opponents of the measure that the absence of the "filters" did not fatally taint the substance of the law. If the measure is struck down, the concurrence of two judges (and perhaps three) will lend credence to assertions that invalidation was the product of constitutional command, not personal preference. This should help to reduce "popular cynicism" and strengthen the legitimacy of the judges' decision.

On balance, I think Congress would be quite justified in providing a unique structure for suits seeking injunctive relief against state laws adopted by referendum. The next step is to look at the particular structure contemplated by H.R. 1252: the requirement of a three-judge district court.

B. Three-judge courts and the Supreme Court: the problem

Two decades ago, Congress eliminated the three-judge court requirement for suits seeking injunctions against state statutes. Under H.R. 1252, the requirement would be reinstated for a limited class of cases. Proponents of H.R. 1252 argue that because the number of suits affected would be small, the requirement will not burden the courts in any substantial way. To evaluate this argument, it is necessary to consider separately the effects at the trial level and the consequences for the United States Supreme Court.

In hearings on H.R. 1170 in the 104th Congress, witnesses outlined the burdens of convening judges and taking evidence when a case must be heard and decided by a district court of three judges. Those burdens can easily be overstated; after all, challenges to state referenda will generally involve issues of law, not issues of fact. Certainly the inefficiencies pale beside those generated by suits under the Voting Rights Act. If the three-judge courts themselves were the only focus of concern, I would be hard pressed to say that the system could not accommodate another case or two each year.

The more troublesome consequences are those that would be experienced by the United States Supreme Court. H.R. 1252 provides that appeals of cases within its scope "shall be to the Supreme Court." Even without that specific provision, appeals would go directly to the Supreme Court under 28 U.S.C. § 1253. This is so whether the three-judge court grants or denies the injunction, and whether the injunction is interlocutory or permanent, as long as the suit is one "required by any Act of Congress to be heard and determined by a district court of three judges."

The first problem is that three-judge court cases come to the Supreme Court without the filtering of facts and contentions by the court of appeals. This is a significant loss. When cases receive an initial review in the courts of appeals, those courts winnow the record, narrow the issues, and sharpen the parties' arguments. Without that review, the Supreme Court will be confronted with an undigested record that is difficult to absorb and evaluate. This is bad not simply because it adds to the Justices' burdens but because it makes for sprawling, confusing decisions that add to the difficulties that confront lawyers, lower courts, government officials, and citizens who want to know what their rights are.

The second problem is even more serious. Less than ten years ago, Congress eliminated the remaining elements of the Supreme Court's mandatory jurisdiction over cases from state courts and from the federal courts of appeals. Congress did this, in part, because it recognized that an obligatory jurisdiction impairs the Court's ability to select the right time and the right case for resolving important issues of constitutional law. Justice Frankfurter put the point this way: "A case may raise an important question but the record may be cloudy. It may be desirable to have different aspects of an issue further illumined by the lower courts. Wise adjudication has its own time for ripening." Maryland v. Baltimore Radio Show, 338 U.S. 912, 918 (1950) (opinion respecting denial of certiorari).

Litigation growing out of state referendum measures is particularly susceptible to the weaknesses identified by Justice Frankfurter. Almost by definition, referendum measures will involve issues that are novel, controversial, and difficult. The laws themselves may be badly drafted. They may include unique or timebound provisions that are unlikely to be replicated elsewhere.

If the Supreme Court is forced to confront an issue prematurely or in a case that presents an inappropriate "vehicle" for addressing it, the result is likely to be a decision that confuses more than it settles. Even worse, if the Court ends up striking down a poorly drafted law, this will injure the prospects for enacting constitutionally acceptable measures that accomplish the same ends through more carefully calibrated means.

C. Three-judge courts and the Supreme Court: a solution

The preceding analysis raises the question: is obligatory review by the Supreme Court a necessary corollary of decision by a three-judge court? The answer is no. Even under the pre-1976 regime, some rulings by three-judge courts were appealable to the courts of appeals. See, e.g., MTM, Inc. v. Baxley, 420 U.S. 799 (1975) (Younger abstention). And Congress could surely provide for such review for cases within the scope of H.R. 1252.

There is a difficulty, however. Ordinarily, cases in the courts of appeals are heard and decided by three-judge panels. It would be anomalous for the decision of one three-judge court to be reviewed by an appellate panel of the same size. Thus, if Congress were to provide for review by the court of appeals, I suggest a requirement that the appellate panel consist of at least five judges.

Once again, there is a snag. Under 28 U.S.C. § 2284, the three-judge district court must include at least one circuit judge. That judge, of course, would be ineligible to sit as a member of the appellate panel. See 28 U.S.C. § 47 ("No judge shall hear or determine an appeal from the decision of a case or issue tried by him."). Exclusion of one judge from participation at the appellate level might be viewed as unfair, especially if the case is heard or reheard by the court en banc.

Notwithstanding this concern, I believe that initial review by the court of appeals is preferable to initial review by the Supreme Court. I therefore suggest that section 2 of the bill be modified as follows:

In subsection (a), delete the sentence, "Any appeal of a determination on such application shall be to the Supreme Court."

Renumber subsection (c) as (d), and insert a new subsection (c) as follows:

(c) Any appeal of a determination on an application within the scope of subsection (a) shall be taken to the court of appeals in accordance with section 1294 of Title 28. Such appeals shall be heard and determined by a court or panel of no fewer than five judges, unless a hearing or rehearing before the court in banc is ordered in accordance with section 46(c) of Title 28.

There is precedent for this approach; indeed, the suggestion is based on the statute and rule that govern the hearing of cases by the Court of Appeals for the Federal Circuit. Under 28 U.S.C. § 46(c), that court is authorized to "sit in panels of more than three judges if its rules so provide." Pursuant to that authority, Local Rule 47.2(a) provides that "appeals in cases from the Court of International Trade decided by a three-judge court . . . will ordinarily be referred to a panel of five judges."

D. Alternatives to a three-judge court requirement

In its report on H.R. 1170 in the 104th Congress, the Judiciary Committee emphasized the affront to state-federal relations when a state law that reflects "the direct will of the electorate" is struck down by a single federal judge whose decision can be overturned only through a lengthy appeals process. These concerns also come into play ­ perhaps not as acutely ­ when a single judge invalidates a law passed by the state legislature. Yet, as the committee implicitly recognized, it would be impractical to require a three-judge court for all challenges to state statutes.

I suggest an alternative approach that would address the concerns underlying H.R. 1252 without interfering with the Supreme Court's ability to select the time and "vehicle" for resolving constitutional questions. The ingredients of this approach are threefold:

allowing for reassignment of cases without the need to disqualify the judge for cause;

requiring the courts of appeals to expedite appeals in cases where anticipatory relief is sought against a state law (whether enacted through legislation or by referendum); and

directing the courts of appeals to review de novo, rather than for abuse of discretion, in such cases.

The first element is already provided for in section 6 of H.R. 1252 (discussed below). The second element ­ a requirement that appeals be expedited ­ would be a relatively minor expansion of existing law. Section 1657 of the Judicial Code already requires all federal courts to expedite "any action for temporary or preliminary injunctive relief." The suggested revision would extend this requirement to other kinds of anticipatory relief in suits challenging state laws.

The most significant change would be the directive to the court of appeals to conduct de novo review of the district court's decision to grant or deny anticipatory relief. Under current law, the standard of review is "abuse of discretion." Thus, in the Proposition 187 case, the Ninth Circuit Court of Appeals affirmed the district court's issuance of a preliminary injunction and its rejection of the state's request for abstention. The court of appeals emphasized that it was not reviewing "the underlying the merits" of the district court's rulings. Gregorio T. v. Wilson, 59 F.3d 1002, 1004 (9th Cir. 1995).

"Abuse of discretion" is an appropriate standard of review in cases involving only private rights. It is much less appropriate when the clash is between constitutional rights and state prerogative. Putting aside issues of fact ­ as to which the "clearly erroneous" standard should be maintained ­ the court of appeals is in as good a position as the district court to balance the equities. Thus, the court of appeals should exercise an independent judgment in determining whether, overall, the constitutional claim or the exercise of state power should be held in abeyance while the constitutional issues are definitively adjudicated. That is the thrust of the approach I propose.

This regime would accomplish the goals of H.R. 1252 while answering the principal objections raised in the 104th Congress to H.R. 1170. All states' laws would be treated in the same way. Constitutional challenges would be heard initially by a judge in whom the parties have confidence. There would be no opportunity for plaintiffs to forum shop by seeking only declaratory relief; declaratory judgments and injunctions would be treated alike. The determination of a single judge would not hold sway for long; in short order, the ruling would be either ratified or set aside by a panel of three judges exercising an independent judgment. At the same time, there would be no interference with the Supreme Court's discretion to determine the right time and the right case for resolving a difficult constitutional issue.

E. Conclusion: judicial federalism and the role of Congress

"When anticipatory relief is sought in federal court against a state statute, respect for the place of the States in our federal system calls for close consideration of [a] core question:" "Is this conflict really necessary?"

This admonition was uttered earlier this year by Justice Ruth Bader Ginsburg, speaking on behalf of a unanimous Supreme Court. See Arizonans for Official English v. Arizona, 117 S. Ct. 1055, 1072-73 (1997). Justice Ginsburg's reminder was directed at the lower federal courts. It came in an opinion reversing an appellate decision that struck down a state law adopted by popular initiative. To the extent that the lower courts heed Justice Ginsburg's admonition, section 2 of H.R. 1252 may prove unnecessary.

Of course, Congress has the primary responsibility for delineating the contours of federal judicial power. I have suggested an alternative to section 2 that I believe warrants consideration, if only because of the awkwardness that inheres in the three-judge district court. But I remain keenly aware that, as Professor Eule put it, "citizens are likely to feel substantially more connected and personally involved with [statewide plebiscites] than with the remote action of their elected representatives." For that reason, and for the reasons given earlier, it is appropriate to provide special safeguards for federal judicial scrutiny of laws adopted through direct democracy.

III. Interlocutory Appeals of Court Orders Relating to Class Actions

Section 3 of H.R. 1252 would allow interlocutory appeals from district court orders that determine whether or not an action may be maintained as a class action. The courts of appeals would have discretion to accept or reject such appeals. I strongly support this reform.

As the authors of the leading treatise on federal practice have said, "The practical effects of granting or denying certification are often so great . . . that it would be desirable to create an opportunity for review in the sole discretion of the court of appeals." H.R. 1252 would take that step and would thus close an unfortunate gap in current law.

The Supreme Court held in Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978), that an order denying class action certification is not appealable as a final order. Plainly, an order that grants certification would not constitute a final judgment. Thus, under current law, there are only two routes for seeking review of a district court's ruling on class certification: by allowance of an interlocutory appeal under 28 U.S.C. § 1292(b) and by mandamus.

Both routes have limitations. Interlocutory appeals under 28 U.S.C. § 1292(b) require a certificate from the trial judge. If the trial judge declines to issue the certificate, this route is closed off.

Mandamus does not require the consent of the trial judge, but mandamus is "an extraordinary remedy, to be reserved for extraordinary situations." Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988). Litigants will seldom succeed in arguing that an order granting or denying class certification satisfies the high standards required. Further, the determination whether mandamus is appropriate can itself be a difficult and controversial issue. See, e.g., Matter of Rhone-Poulenc Rorer, Inc., 51 F.3d 1293 (7th Cir. 1995) (2-1 decision).

H.R. 1252 would sweep away the difficulties and the controversies. It would lodge the power to determine appealability where it should be lodged ­ with the court of appeals. If the court of appeals thinks that immediate review of the ruling on class certification will benefit the litigation, the appeal will go forward. If the court of appeals thinks that review should await final judgment, the request will be rejected. That is the way the system should work.

One final comment. A similar proposal is included in the preliminary draft of proposed amendments to Rule 23 circulated to the bench and bar by the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States. See 167 F.R.D. 523, 565-66 (1996). There may be some advantages to enacting this reform through rulemaking rather than legislation. On the other hand, the other proposed amendments to Rule 23 are quite controversial, and promulgation of a revised rule may be a long way off.

IV. Limitation on Court-Imposed Taxes

Section 5 of the bill would limit the power of a federal district court to require states or their political subdivisions to impose new or increased taxes. In its general thrust, this is an appropriate exercise of Congress's power to regulate the remedies that may be invoked by federal courts. However, particular elements of the proposed measure warrant further examination.

On the one hand, the restrictions in proposed 28 U.S.C. § 369(a)(1) may limit federal court power to an extent that Supreme Court precedent would not permit. The most vulnerable element is proposed subsection (A)(1)(E), which would bar a tax remedy unless the court finds that "the proposed tax will not conflict with the applicable laws with respect to the maximum rate of taxation as determined by the appropriate State or political subdivision thereof. . . ."

Unfortunately, the Supreme Court in Missouri v. Jenkins, 495 U.S. 33, 57 (1990), concluded that "a local government with taxing authority may be ordered [by a federal court] to levy taxes in excess of the limit set by state statute where there is reason based in the Constitution for not observing the statutory limitation." To be sure, this proposition was endorsed only by a bare majority of the Court, and a powerful dissent argued that the Court misread the precedents upon which it relied. But as of now it is the law.

That is not the end of the matter, however. In Jenkins, the Court was speaking about the scope of federal remedial power in the absence of Congressional action. The Court would not necessarily reach the same conclusion in the face of a statute explicitly withdrawing courts' authority to impose a particular remedy. In other cases, the Court has deferred to Congress's judgments about the remedies that should or should not be available from federal courts.

Obviously, the question is one that will require careful attention. Meanwhile, other provisions of the statute may go further than necessary in allowing court-imposed taxes. As currently drafted, the bill would authorize federal courts, under the limited circumstances specified, to impose taxes for the purpose of enforcing rights under statutes or the common law. I believe this is unnecessary. As to federal statutory rights, Congress has plenary power to delineate remedies; Congress could prohibit court-imposed taxation under any circumstances.

As to rights under state law, the Supreme Court has already held that the doctrine of Ex parte Young is "inapplicable in a suit against state officials on the basis of state law." Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 106 (1984). This suggests that Congress could completely prohibit federal courts from imposing taxes as a remedy for state-law violations.

If these propositions are correct, the proposed section 1369 could be simplified and strengthened. It would read:

(a) Limitation on court-imposed taxes. No district court may enter any order or approve any settlement that requires any State, or political subdivision of a State, to impose, increase, levy, or assess any tax unless the court finds by clear and convincing evidence that ­

(A)(1) there are no other means available to remedy the deprivation of a right under the Constitution of the United States; and . . . [etc. as in H.R. 1252].

V. Reassignment of Cases

Section 6 of H.R. 1252 would add a new provision to the Judicial Code that in effect would give each side in a civil case one opportunity to secure reassignment of the case to another judge. In colloquial terms, each side would have a right of "peremptory challenge."

Although this procedure would be a novel feature for the federal courts, there is ample precedent for it in state practice. Moreover, the idea has been endorsed by numerous commentators and by the American Bar Association. Of particular interest are the comments of scholar-practitioner John P. Frank of Arizona, who is probably the leading national authority on judicial disqualification. Nearly 25 years ago, Mr. Frank urged Congress to enact a statute allowing peremptory challenges of trial judges. He said:

I personally strongly recommend the peremptory challenge system and urge its adoption for the federal trial courts . . . . If another judge is available, there really is no reason why a case should be heard before a particular judge if one of the parties would prefer someone else. The system must not be allowed to be abused and an instrument of delay, but this is easily guarded against. The overwhelming number of cases in the federal system are heard in multi-judge district courts ­ and the timely shift of a case from Judge A to Judge B is no inconvenience to anyone. Particularly in the large courts where cases are assigned by chance, the peremptory challenge serves as a constructive antidote to the inevitable occasional misfunctioning of the chance assignment system.

The argument for a peremptory challenge system was also made in the 1987 edition of the American Bar Association's Standards Relating to Trial Courts. After discussing a recommended standard on disqualification for cause, the commentary continues (at 51-52):

Consideration should be given to adopting a procedure for peremptory challenge of a judge. The theory of such a procedure is that a party should be able to avoid having his case tried by a judge who, though he is not disqualified for cause, the party believes cannot afford him a fair trial. . . . Although a party is not entitled to have his case heard by a judge of his selection, he should not be compelled to accept a judge in whose fairness or understanding he lacks confidence if that can be avoided without interfering with administration of the court's work. . . . Experience in jurisdictions having the peremptory challenge procedure indicates that, when subject to proper controls and limitations, it can provide [an additional measure of assurance to parties] without burdensome additional cost or complications in trial court administration.

Although this commentary does not appear in the 1992 revision of the Standards, the argument remains persuasive.

Allowance of peremptory challenges may also contribute to efficiency. In many instances, litigants who might otherwise file a motion to recuse would instead use the peremptory challenge. The saving in time, effort, and cost could be considerable. Also, peremptory challenges may reduce antagonism between lawyers and judges, because the litigant need not allege bias or prejudice on the part of the judge, as is required by the disqualification statute.

A contrary view of the proposal is taken by a Federal Judicial Center report authored by Alan J. Chaset and published in 1981. Space does not permit detailed discussion of Mr. Chaset's arguments; however, I note that many of his points apply only to criminal cases, which would not be affected by H.R. 1252.

Beyond that, many of the concerns raised by Mr. Chaset are quite speculative. Indeed, there is a sharp contrast between his dire predictions of future consequences and the generally positive picture that emerges from his report on the experience in the states.

One possible approach would be to authorize pilot or demonstration programs in selected judicial districts, as was done in the Civil Justice Reform Act of 1990. Another would be to enact the proposed legislation but with a sunset provision. If the negative consequences materialize, the peremptory challenge would die without the need for Congressional action.

I do call your attention to one aspect of the proposal that requires some fine-tuning. H.R. 1252 leaves unclear the relationship between the proposed section 464 and the two existing provisions on disqualification, sections 155 and 455. This raises a number of questions that should be explicitly addressed in the statute. Is reassignment pursuant to section 464 intended as an alternative to disqualification or as a supplement? If the latter, which procedure should be invoked first? How should courts deal with situations in which both procedures are invoked, but by different parties?

VI. Conclusion

Since the earliest days of the republic, federal judicial review of the constitutionality of state laws has been a vital part of the American system of government. Under the Constitution, Congress has the primary responsibility for designing the structure through which that process operates. In functional terms, the goal is to enable federal courts to protect constitutional rights without unnecessarily trammelling the right of the people to govern themselves. But functionality is not sufficient. All citizens ­ those who support the laws that are challenged as well as those who challenge them ­ have a stake in preserving the legitimacy of judicial review.

Reasonable people can disagree over how well the system is working and whether reforms are needed. H.R. 1252 is a restrained, thoughtful response to current controversies and the passions that have been aroused. I appreciate the opportunity to discuss the bill with you today, and I would be happy to answer any questions.

Additional Source Notes

I.

Controversy over Ex parte Young. See Paul M. Bator et al., Hart & Wechsler's The Federal Courts and the Federal System 1333-34 [hereinafter Hart & Wechsler III]

Senator's protest. 45 Cong. Rec. 7256 (1910), quoted in Hart & Wechsler III at 1334.

II.

Objections to H.R. 1170. H.R. Rep. No. 104-179 at 18 (Dissenting Views).

Eule analysis. Julian N. Eule, Judicial Review of Direct Democracy, 99 Yale L.J. 1503 (1990). The references in the text will be found at pp. 1555-58 and 1585. Paragraphing and footnotes have been omitted from the quotation.

III.

Leading treatise. 16 Charles A. Wright et al., Federal Practice & Procedure, Jurisdiction § 3935.6, at 637 (2d ed. 1996).

V.

Comments of John Frank. Judicial Disqualification: Hearing on S. 1064 Before the Subcomm. on Improvements in Judicial Machinery of the Senate Comm. on the Judiciary, 93d Cong., 1st Sess. 63 (1973) (statement of John P. Frank).

Federal Judicial Center study. Alan Chaset, Disqualification of Federal Judges by Peremptory Challenge (Federal Judicial Center 1981).

1. University of Pittsburgh School of Law.

2. Source notes will be found at the end of the statement.

Judiciary Homepage