Our courts must operate in concert with our values as a free society. The Framers did not adopt Plato's model of philosopher kings for the judiciary. In fact prior to the creation of the federal courts, Alexander Hamilton envisioned in Federalist #78 that "the judiciary is beyond comparison the weakest of the three departments of power."

In assessing the role of the federal judiciary today vis a vis the power of the democratically elected branches of both federal and state governments, we confront a question which goes to the heart of how we will govern ourselves. At the same time it should be emphasized that this issue is more profound than the ideological complexion of the federal judiciary. This subcommittee must confront the more fundamental issue of judicial accountability and the rules affecting those who mete out justice. While much is at stake for potential litigants who may enter the doors of a federal courthouse, we must also consider the larger impact on the perceptions of the American people concerning the fairness and credibility of the judicial system itself.

Judicial Disqualification A central aspect of the need for greater accountability of those who sit on the federal bench concerns the rules relating to judicial disqualification. At common law, Sir Edward Coke once observed that "no man shall be a judge in his own case." Since that time a body of law has evolved to govern the procedures by which judges are to be disqualified from hearing cases where they have an interest or bias.

On its face 28 U.S.C. 455(a) requires that a judge remove himself or herself from "any proceeding in which his impartiality might reasonably be questioned." Despite revisions to the law in 1974 where a supposedly "objective standard" was adopted, judicial decisions have greatly narrowed the scope of the statute. Ironically, the challenged judge is the one who hears the motion seeking his or her own disqualification. The federal judiciary is thus insulated from the wisdom of the Coke maxim. Needless, to say 455(a) has not been an effective vehicle for the removal of judges where reasonable questions about impartiality and fairness have been at issue.

Another existing statutory provision available to parties before the court is 28 U.S.C. 144 which requires recusal where a district court judge has a personal bias or prejudice for or against a party in a proceeding. It is important to note in the context of the legislation before this subcommittee there is much support for the proposition that Congress intended 144 to provide for the automatic disqualification of a judge upon the filing of an affidavit of prejudice. During the House debates on the legislation in 1911, the sponsor of the bill, Congressman Cullop was asked by Congressman Cox whether the trial judge had any discretion once the affidavit was filed:
Mr. Cullop: ...No, it [the bill] provides that the judge shall proceed no further in the case." The filing of the affidavit deprives him of jurisdiction in the case.

Mr. Cox: ...Suppose the affidavit sets out certain reasons which may exist in the mind of the party making the affidavit; suppose the judge to whom the affidavit is submitted says that it is not a statutory reason?

In other words, does it not leave it to the discretion of the judge?

Mr. Cullop: No; it expressly provides that the judge shall proceed no further.

Unfortunately, in the decades following its passage, 144 has been so narrowly construed by the federal courts that it would be entirely unrecognizable by its author were he alive today. Suffice it to say that the ability of the judiciary to determine the sufficiency of the affidavit accompanying the motion under 144 has rendered the statute a hollow and meaningless tool as a means of preventing judicial bias.

Another possible vehicle for addressing malfeasance by federal judges can be found in 28 U.S.C. 372. This provision of law was enacted during my first term in the Congress and was intended to provide a mechanism for handling complaints against federal judges. Aside from the questions surrounding the effectiveness of the statute itself, the opportunity to write a letter to the Chief Judge of the circuit after the fact, is little consolation to a litigant who has appeared before a judge perceived to be biased against his or her case. As Russell Iungrich noted at the time of its enactment it "may be helpful as therapy...[but] does little to create the appearance of fairness within the federal judicial system." In this regard I would note that Sec. 4 of H.R. 1252 contains language which would refer proceedings under 372 (c) of title 28 to another judicial circuit. This effort to effect a more neutral assessment of a complaint filed under this section of the code is a commendable one. However, even with such changes, my concern remains the same as it did in 1980 when this section was crafted. It was my feeling then, and it remains so today that post-facto relief is not directly relevant to the litigant at trial. Thus, despite any salutary effects from proposed Sec. 4 of H.R. 1242, the underlying statute nonetheless remains an inadequate remedy.

Finally, the most obvious disciplinary mechanism to hold judges accountable found in Art. I Sec. 2 of the U.S. Constitution is the power of this Body to impose the sanction of impeachment. In fact this cumbersome process would be entirely ineffective to address problems of judicial bias and temperament with respect to cases which come before a federal court.

The existing statutory mechanisms for judicial disqualification have proven inadequate to the task of assuring those who practice before the federal courts of a fair and impartial forum. As the Chicago Bar Association has noted, the present-day judicial disqualification laws are inadequate and federal district court judges are often unable or unwilling to recognize their partiality. The point is that those who judge--human beings like the rest of us and thus vulnerable to human failings-- must not themselves be insulated from judgment concerning their own capacity for fairness. Such a predicament undermines the confidence of the parties before them as well as the stature of the judiciary in the estimation of the public. It is time to bring the rules governing our nation's courts into greater conformity with our values as a free society.

Peremptory Challenges Fortunately, the problems inherent with the existing statutory scheme and related exegesis by the federal courts themselves, point us towards a possible solution to the present conundrum. The task before this subcommittee is to develop a mechanism which provides greater accountability and is not based solely upon notions of self-policing.

We need look no further than the states themselves in searching for a solution. As many as seventeen states currently provide for peremptory challenges of state court trial judges. Hardly a recent legal innovation, some jurisdictions had peremptory challenge statutes as early as the late nineteenth century.

In general, the definition of a "peremptory" challenge is one "not requiring any cause to be shown." An analogy is sometimes drawn between this procedure and that followed with respect to the peremptory challenge of jurors. Some of the states which allow peremptory challenges do so by statute, others by court rules and some by both. Overall, it appears that peremptory challenges are used infrequently in the states that have them. Although there is some variation among jurisdictions, the available data seems to suggest that peremptories are exercised less than two percent of the time where there is an opportunity to do so. Let me say that in light of the long experience in California with peremptory challenges it is the opportunity itself to offer such a challenge which is perhaps most significant in its effect on judicial conduct. While seldom used, its availability has had a highly salutary impact on the administration of justice in my state.

On balance this is entirely consistent with the evidence in other peremptory challenge jurisdictions as well. As a 1986 examination of peremptory challenges in the states conducted by the U.S. Department of Justice, Office of Legal Policy concluded..."the authors of most of the scholarly studies on peremptory challenges also conclude that they are working relatively well in the states as have the authors of this study."

Legislation to Extend Peremptory Challenges to the Federal Level

As a member of Congress concern over the need for greater accountability of the judiciary and the importance of impartiality in the courtroom led me to introduce legislation providing for peremptory challenges in the context of the federal judiciary in the 97th, 98th, and 99th Congresses. The underlying proposal contained within these bills allowed challenges to be exercised in both criminal and civil cases. All parties on one side had to agree to the challenge and the chief judge of the court of appeals for the circuit was to resolve any disagreement. One challenge on each side was allowed.

In this regard, I am most pleased that Congressman Charles Canady has introduced H.R. 520, The Peremptory Challenge Act of 1997. This proposal covers both criminal and civil cases. Each side in a case would be limited to one challenge. Generally it provides that a peremptory challenge must be filed within 20 days after notice of the assignment of the case. Additionally, a joined party or a party served with a supplemental, amended, or third party complaint would have 20 days from the service of the complaint to file an application for a peremptory challenge, but only with the concurrence of all the other parties on the same side.

It is my view that H.R. 520 would directly address the need for greater accountability within the judiciary and concomitantly assure greater fairness and impartiality within our nation's federal courts. I strongly support Congressman Canady's proposal and feel that it is an absolutely essential element of meaningful judicial reform legislation.

Section 6 of H.R. 1252, The Judicial Reform Act of 1997 also contains language which would provide for the reassignment of federal judges and magistrates. Its inclusion represents a recognition of the importance of the need for greater accountability of the judiciary. However, it is with much regret that I must add that the absence of criminal cases within the scope of 6 is a serious omission in the legislation which should be remedied. There is absolutely no reason whatsoever that those who appear before our nation's federal courts in criminal cases should not have the same opportunity for fair and impartial hearings as those on the civil side of the docket. It is seemingly incongruous to recognize the interests of private litigants while not acknowledging the enormous concerns of the state, criminal defendants, and society with respect to criminal cases. This is one issue where both prosecutors and the defense bar should be able to agree. Impartiality must be a primary, underlying objective of adjudication. In this regard, the only national survey that I am aware of concerning the operation of peremptory challenges within the states concluded that:
...Prosecuting attorneys and public defenders were overwhelmingly in favor of the system. Nearly all of the respondents reported that peremptory challenges are working well in their states.

It is also important to understand that the failure to include criminal cases in judicial reform legislation is likely to entail unintended consequences. Although habeas corpus cases are generally purported to be civil in nature, the exceptions essentially swallow the rule. In fact habeas cases are hybrid in nature, involving both aspects of criminal and civil cases. As American Jurisprudence 2d points out:
It is the prevailing view that habeas corpus is, in nature, civil rather than a criminal proceeding...However, in some cases, for certain purposes at least, habeas corpus proceedings are looked upon as criminal in nature.

Experience in the various judicial circuits confirms this assertion. The U.S. Supreme Court itself has acknowledged that:

It is of course true that habeas corpus proceedings are characterized as "civil." But the label is gross and inexact. Essentially, the proceeding is unique. Habeas corpus practice in the federal courts has conformed with civil practice only in a general sense.

Thus, the effect of only allowing peremptory challenges in civil cases could lead to a potentially huge gap in its coverage affecting the states. Based on our experience with the recently enacted habeas statute, the federal courts will not allow it to be used unless they are expressly required to do so. The only way of accomplishing this objective is to cover both civil and criminal cases.

Finally, the formulation of legislation should not be dominated by consideration of the positive or negative impact that it may or may not have on the federal judiciary. The needs of those who choose public service should not alone dictate the rules of any public institution. Rather, the public interest in fair and impartial deliberations must be the controlling consideration. Perhaps the 1976 ABA standards Relating to Trial Courts summarized the rationale best:
... 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.

..[T]he procedure for peremptory challenge of a judge...can provide an additional measure of assurance to the parties that their case will be justly determined. Experience in jurisdictions having the peremptory challenge procedure indicates that, when subject to proper controls and limitations it can provide this assurance without burdensome additional cost or complications in trial court administration.

This analysis remains sound in its logic. No party should have to accept the prospect of facing a judge who is unable to provide a fair and impartial forum. At the same time a party should not necessarily be entitled to the judge of his or her choice. A peremptory challenge as allowed under H.R. 520 is not a guarantee that you will obtain the judge you want. It would merely provide an available tool to assure the parties and the public that our nation's courthouses will provide a fair and impartial forum. Although experience indicates that it would be seldom used, its mere availability would have a salutary effect on the conduct of the federal judiciary.

Three Judge Court for Certain Injunctions Another significant aspect of judicial impartiality concerns the need for a legal framework which will enhance the rule of law in our society and concomitantly limit the partiality of individual federal judges. This is of particular importance where the issues at stake concern the state and federal relationship. As the U.S. Supreme Court recently observed in another context:
In litigation generally, and in constitutional litigation most prominently, courts in the United States characteristically pause to ask: Is this conflict really necessary? 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 that core question.

The inherent threat to the balance of federalism posed by federal judicial intervention in the execution of state laws, has been recognized since the beginning of our nation. As early as 1793, Congress provided that no federal injunctions should be granted to stay state court proceedings. Although statutory exceptions have been engrafted on this provision, it is still the general policy of Congress, based on wise principles of federalism, that state courts shall remain free from interference by federal courts.

The fundamental principle of the Eleventh Amendment to the Constitution is that state sovereign immunity limits the grant of jurisdiction to federal courts. The States occupy a special and specific position in our constitutional system. As Justice Powell stated in his dissenting opinion in Garcia v. San Antonio Metropolitan Transit Authority, "The constitutionally mandated balance of power' between the States and the Federal Government was adopted by the Framers to ensure the protection of our fundamental liberties.'' And the Supreme Court has subsequently affirmed that "[b]y guaranteeing the sovereign immunity of the States against suit in federal court, the Eleventh Amendment serves to maintain this balance. . ."
In 1908, the Supreme Court decided in Ex parte Young, that notwithstanding the prohibitions of the Eleventh Amendment, injunctions could issue against state officers to prevent them from enforcing unconstitutional statutes. The decision sent a shock wave through the federal system. Its effect was, in Justice Harlan's words, "to enable the subordinate federal courts to supervise and control the official actions of the States as if they were `dependencies' or provinces." By 1910, Senator Lee Overman of North Carolina, the sponsor of the bill that created the original 3-judge court requirement for injunctions against state statutes (former 28 U.S.C. 2281) could say:
But let "one little judge" stand up against the whole State, and you find the people of the State rising up in rebellion. The whole purpose of the proposed statute is for peace and good order among the people of the States." "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.

Congress acted immediately to increase the level of scrutiny given cases in which injunction were sought against enforcement of state statutes. The impetus for enactment of 2281 was the numerous injunctions issued against progressive legislation enacted by the states in the first decade of this century. Sen. Overman identified railroad regulatory legislation in particular as having encountered the most difficulty at the hands of the federal judges, who often issued injunctions against enforcement of those statues ex parte. Interestingly, it was also a railroad case that gave rise to the Pullman abstention doctrine, a judicially-created rule of restraint announced for the protection of the states. The case arose from a suit for injunction against enforcement of a railroad commission regulation under old 2281.

Legislation applicable to all state laws, was enacted to require that in every case in which injunctive relief was sought against the enforcement of state statutes on constitutional grounds, a three-judge court must be convened, with a direct appeal to the Supreme Court. This was the predecessor of 28 U.S.C.  2281. The statutory protection was subsequently extended to interlocutory injunctions against state administrative orders, and eventually, to cover permanent injunctions as well.

Opposition to 2281 within the judiciary arose due to the claim that the 3-judge panel posed an unwarranted claim on judicial resources. Substantive limitations were successively engrafted onto the 3-judge panel requirement. Early on, the United States Supreme Court held there was no requirement of a 3-judge panel if the constitutional claim was "insubstantial." Also recognized was an exception when the impact of the requested injunction would be merely local, as opposed to statewide. Claims of preemption were held to require a 3-judge panel only if the Supremacy Clause was "immediately" implicated, as opposed to "ultimately" implicated. And for some time, some circuits held there was no requirement of a 3-judge court if the constitutionality of the statute was challenged only "as applied" until the United States Supreme Court finally rejected that theory.

28 U.S.C.  2281 itself remained in effect until 1976, when Congress abolished it in an apparent response to concerns expressed within the judiciary concerning workload burdens on the courts. This should strike most observers as a rather odd rationale for repeal of a federal law. Even after stipulating to the importance of judicial resources it is hard to imagine how such a concern could outweigh the significant state interest in the 3-judge panel within the context of a system of federalism. Effectively giving individual judges the power to suspend state laws indefinitely when they find them offensive is a blow to the comity which should characterize the federal-state relationship.

Put very simply, in the absence of statutory safeguards on judicial process, any duly-enacted state law may be enjoined on grounds of constitutionality without a full hearing on the merits. Furthermore, in the absence of a stay on appeal, judicial review of a particular judge's order may take years to complete. Such a state of affairs is entirely incompatible with the notion of federalism.

Justice Frankfurter aptly observed that "As history amply proves, the judiciary is prone to misconceive the public good by confounding private notions with constitutional requirements." The Founding Fathers wisely adopted the separation of powers doctrine to prevent the abuses of judicial review. They rejected the proposed "Council of Revision," on which judges would sit in review of proposed legislation. And Congress in its earliest days spoke out against the principle of a single judge issuing injunctions having the effect of interfering with state judicial proceedings.

The reasons for requiring restraint, deference, and caution in reviewing state laws has been characterized by the Supreme Court as "a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways."

Section 2 of H.R. 1252 First of all, I would like to commend my friend from California, Congressman Bono for his tireless effort on behalf of our fellow citizens. For, regardless of their position on state ballot measures which gave rise to his proposal, they as well as citizens in other states have much more at stake than any particular outcome in any particular election. Section 2 of H.R. 1252 is essential to such fundamental notions as federalism, and the democratic process itself.

Chief Justice William H. Rehnquist, while an Associate Justice and Circuit Justice for the Ninth Circuit, once observed that "any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury." The year before the Chief Justice expressed this thought, Congress had acted to repeal statutory protection against just such irreparable injury that had been wisely enacted by a prior Congress sixty-six years before.

Sec. 2 of H.R. 1252 provides an opportunity to restore the protection of the states against such "irreparable injury" under the limited circumstances where the democratic majority of a state has expressed its will at the ballot box through the processes of the initiative or referendum. It certainly turns the very idea of participatory democracy on its head when those who fail to persuade a majority of their fellow citizens of the wisdom of their point of view can then turn to a single federal judge to invalidate the outcome of the electoral process. This supplanting of reasoned political discourse by raw judicial power is incompatible with our values as a free society. Left to await the ultimate determination of a federal judge as to whether the outcome will receive judicial blessing or legal sanctions leading to ongoing litigation, citizens who do take the time to vote can only wonder if their vote will really count. And the pundits express bewilderment at increasingly high levels of voter apathy and lower levels of participation. It simply defies the logic of the democratic process to substitute "one judge one vote" for the wisdom of "one person one vote."

Section 2 of H.R. 1252 is a measured response to a major problem. It does not eliminate the power of federal courts to review the constitutionality of state laws. Nor does it prohibit injunctions against the enforcement of unconstitutional state statutes. What it does is recognize that to maintain the fundamental constitutional balance between the federal government and the states, these provisions must not rise or fall at the whim of a single federal judge.

Section 2 of H.R. 1252 recognizes the role of the states as laboratories within our federal system, their status as sovereigns, and the principle that their governmental processes must not be stopped in their tracks indefinitely on the basis of the limited hearings necessarily given to applications for ex parte or interlocutory relief made to a one-judge court.

Over 90 years ago, Justice Holmes wrote: "Great constitutional provisions must be administered with caution. . . it must be remembered that legislators are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts. Those wise words apply with equal and perhaps more vitality to the various state experiments in democracy we call the initiative and referendum process.

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