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34–448 PDF 2007

S. HRG. 110–14

JUDICIAL SECURITY AND INDEPENDENCE

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

FEBRUARY 14, 2007

Serial No. J–110–11

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MICHAEL O’NEILL, Republican Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois, prepared 

statement .............................................................................................................. 48

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa, prepared 

statement .............................................................................................................. 57

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts, 

prepared statement .............................................................................................. 105

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1

prepared statement .......................................................................................... 107

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 3

WITNESS 

Kennedy, Anthony M., Associate Justice, Supreme Court of the United States, 

Washington, D.C. ................................................................................................. 6

QUESTIONS AND ANSWERS 

Responses of Justice Kennedy to questions submitted by Senator Brownback . 33

SUBMISSIONS FOR THE RECORD 

Clark, John F., Director, U.S. Marshals Service, Washington, D.C., statement 34

Conference of Chief Justices and Conference of State Court Administrators, 

Robert M. Bell, Chief Judge and President, Arlington, Virginia, statement .. 39

General counsels of sixty major U.S. corporations, joint letter ........................... 51

Judicial Conference of the United States, D. Brock Hornby, Judge, United 

States District Court for the District of Maine, Washington, D.C., statement ...................................................................................................................... 58

Kennedy, Anthony M., Associate Justice, Supreme Court of the United States, 

Washington, D.C., statement and attachments ................................................. 69

(1)

JUDICIAL SECURITY AND INDEPENDENCE 

WEDNESDAY, FEBRUARY 14, 2007

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Hearing was convened, pursuant to notice, at 10:04 a.m., in 

room 216, Hart Senate Office Building, Hon. Patrick J. Leahy 

(chairman of the committee) presiding. 

Also present: Senators Kohl, Durbin, Cardin, Whitehouse, Specter, Sessions, and Cornyn. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning. Some Senators will be joining 

us a little later. The weather has somewhat slowed some, but I 

think how this committee proceeded with hearings after the 9/11 

attack, and then during the anthrax attack that shut down the 

Senate office buildings. A little snow is not going to stop us, especially when you have Senators from Pennsylvania and Vermont. 

We’re actually aware of it. 

Although, I must admit, things are opening slightly late in my 

home State of Vermont. We had two feet of snow overnight, and 

I’m told that a number of places opened as much as an hour late. 

It’s a new generation that goes slowly. 

But it’s with great pleasure that we welcome to the committee 

today the Honorable Anthony Kennedy, Associate Justice of the 

U.S. Supreme Court to discuss issues of judicial security and independence. 

Both Senator Specter and I had the privilege of serving on this 

committee when Justice Kennedy was confirmed. In today’s society, 

our independent judiciary faces many and varied types of threats. 

We’ve seen judges’ physical security being threatened, but also the 

institutional security and independence under rhetorical attack by 

some affiliated with political branches. 

There are more subtle threats. As the Chief Justice recently reemphasized, there is pervasive uncertainty about the judiciary’s financial security and ability to function as an efficient and effective 

arbiter of justice because of stagnant salaries year after year. 

It is my hope that, working together, we can make some real 

progress on these important issues. We need to do our part to ensure that the dedicated women and men of our judiciary have the 

resources, the security, and the independence necessary to fulfill 

their crucial responsibilities. 

2

Our independent Judiciary is the envy of the world and we have 

to take care to protect that. I have told this story a number of 

times. Shortly after the Soviet Union broke up, a group of parliamentarians from Russia were in my office and they were asking 

about how the judiciary works. 

One of them said, ‘‘Is it true that in America people sometimes 

sue the State? I said, it happens all the time. He said, ‘‘Is it also 

true that sometimes the State loses? ’’ I said, ‘‘Trust me, it happens 

all the time.’’ And he said, ‘‘Do you then replace the judge when 

that happens? ’’ It was at that point I think they finally understood 

the independent judiciary. 

Now, we’re going to take up the matter of court security this year 

by reintroducing legislation that I wish had been enacted last year. 

The Court Security Improvement Act is a bipartisan measure. I introduced it along with Senator Specter, along with the Majority 

Leader, Senator Durbin, and other members of this committee. 

House Judiciary Chairman Conyers has introduced an identical 

measure in the House. It is bicameral, it is bipartisan. It should 

have sent the signal we intend, finally, to complete action on our 

work and increase protection for the judiciary and their families. 

I have this bill on our mark-up tomorrow. 

Our efforts gained increased urgency after the tragedy that befell 

Judge Joan Lefco of Chicago. I remember as though it was yesterday her testimony before this committee. She is a Federal judge 

whose mother and husband were murdered in their home 2 years 

ago. What she told us left a mark on every single member of this 

committee. 

And in the shooting last summer of a State judge in Nevada, it 

provided another terrible reminder of the vulnerable position of our 

Nation’s State and Federal judges. We can’t tolerate or excuse violence against judges. No one should seek to minimize what a corrosive effect that has on our system, so we should enact the Court 

Security Improvement Act as soon as possible. 

It helps, again, in another way, of protecting the independence 

of our judiciary. Our Nation’s founders knew that, without an independent judiciary to protect individual rights from the political 

branches of government, those rights and privileges would not be 

preserved. 

The courts are the ultimate checks and balance in our system of 

government. In recent years, Justice Sandra Day O’Connor has 

spoken out against the attacks on the judiciary and the need to reinforce its security and independence, and she continues to lend 

her voice to this important subject, even though she has now 

stepped down from the court. 

But it is most unfortunate that some in this country have chosen 

to use dangerous and irresponsible rhetoric when talking about 

judges. We have seen Federal judges compared to the Klu Klux 

Klan, called ‘‘the focus of evil’’, and in one unbelievable instance referred to as ‘‘more serious a fear than bearded terrorist who fly into 

buildings.’’

A prominent television evangelist even proclaimed: ‘‘The Federal 

judiciary is the worst threat America has faced in 400 years, worse 

than Nazi Germany, Japan, and the Civil War.’’ This is beyond the 

pale. It is totally irresponsible. And perhaps more regrettably, 

3

we’ve seen some in Congress threaten the mass impeachment of 

judges with whom they disagree. 

Some—in one case even on the floor of the Senate—refer to the 

suggestion that violence against judges has been brought on by 

their own rulings. This is wrong. It is inexcusable. There is no 

place in political discourse of our country for that. The high-pitched 

rhetoric should stop for the sake of our judges and the independence of the judiciary. 

Judicial fairness and independence are essential if we’re going to 

maintain our freedoms. Our independent judiciary is a model for 

the rest of the world. It’s also a great source of our strength and 

resilience in this country. 

During the last few years, the courts have acted to protect our 

liberties and our Constitution, and we should be protecting them, 

physically and institutionally. We owe the our gratitude, and we 

owe them more. We could also demonstrate our respect and appreciation for our judiciary by making appropriate adjustments to 

their pay. 

One of the first bills that we passed in the Senate this year was 

a bill to authorize cost of living adjustments for the salaries of U.S. 

judges. Senator Specter, Senator Feinstein, Senator Cornyn joined 

me in co-sponsoring this bill. I thought it should have been taken 

the last Congress. I’m glad it’s been taken now. 

I hope the House of Representatives would join with us in this 

and, of course, that legislation is but a modest step toward addressing issues raised by Chief Justice Roberts in his recent year-end 

Report of the Federal Judiciary. 

I’ve commended the Chief for speaking out on this matter. But 

I also want to commend Justice Kennedy for doing so today in the 

interest of preserving the judicial independence that is so critical 

for preserving our system of government. I told Justice Kennedy 

when I talked to him yesterday how much I appreciated him being 

here. His testimony today, like the Chief Justice’s year-end report, 

provides important consideration. 

Let me yield to Senator Specter, who has spent more time than 

anybody I can think of in the Senate on these issues. 

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Well, thank you, Mr. Chairman. I join Senator 

Leahy, the Chairman, in welcoming you here, Mr. Justice Kennedy. 

I recollect well your confirmation hearing. You came before the Judiciary Committee after the very contentious hearing in October 

1987 for Circuit Judge Bork, and then the nomination of Circuit 

Judge Douglas Ginsberg, who withdrew. Then the waters were 

quieted when you came in and was unanimously confirmed. 

I compliment you on your outstanding service and your approach 

to the judicial duties, non-ideological, non-doctrinaire, and you 

have come to be the so-called swing justice. It is always interesting 

to observe the court, the Rehnquist court, the O’Connor court, and 

the commentary about the Kennedy court. 

On the subject matters at hand, most of us have spoken out. 

We’re going to get the Court Security bill passed. We should have 

passed it a long time ago. We had a hearing back in June of 2005. 

4

Almost 2 years have passed. The way the Congress works, when 

we were in conference, somebody wanted to add on some things, 

the death penalty for juveniles, and it was not acceptable and the 

matter ended. But that’s a high-priority item. The pay raise is 

going to come through. Courts shouldn’t be held hostage to the 

Congress, and we’ll get that worked out. 

And on the issue of independence, many of us have spoken out 

when the court has been attacked for doing its duty on speaking 

out on the law. When these ridiculous suggestions were made 

about impeachment, they are quickly squelched. 

One subject which is very much in the news today is the question 

of televising the court. Before we started in the back room, I said 

to Justice Kennedy, ‘‘Would you mind if I asked you some questions 

on televising the court? ’’ He shot back instantaneously, ‘‘Not if you 

don’t mind my answers.’’ 

[Laughter.] 

I won’t mind his answers; no matter what they are, I’m prepared 

to listen. 

But there’s been a lot of commentary. Two days ago, the Washington Post had an article on televising the court. Last week, the 

Legal Times had an article about televising the court. Last month, 

an article also in the Post, was once Cloister, now it’s Chief of 

Nightline, and recently Justice Roberts and Justice Stevens appeared on ABC TV, and Justice Ginsberg on CBS with Mike Wallace, and Justice Bryer on Fox News Sunday. 

We thought those spots were reserved for Senators, and turned 

it on 1 day and saw Justice Bryer there. That’s very dangerous activity. Justice Scalia and Justice Bryer had a debate and were on 

the web. Justice Kennedy presided over the trial of whether Hamlet was insane or not. Maybe if there’s a second round of questioning we can get the answer to that, Justice Kennedy. 

But I have long believed that the court ought to be televised because the court’s functions ought to be better understood. The court 

decides all of the cutting-edge questions: who lives, late-term or 

partial birth abortion, who dies on the death penalty cases, what 

is the power of the President. 

Not a blank check, the Supreme Court has delineated the power, 

and also what is the power of the Congress. And the court has 

handed down standards where part of the legislation protecting 

women against violence was stricken for our ‘‘method of reasoning’’, 

I have often wondered what happens when you leave the Senate 

steps and go across the green to the Supreme Court, how the method of reasoning is improved. 

If you were televised, I might get a little better understanding 

of that. The court is frequently challenged as being a super-legislature, and I think the public would benefit by better understanding 

the function of the court. 

Justice Kennedy and I have discussed the standard which he articulated, adopted by the court in the complex situation where Congress legislatures under Article 5 of the 14th Amendment, and the 

State interposes sovereign immunity under the 11th Amendment, 

and the Supreme Court has a test as to whether the legislation is 

congruent and proportionate. 

5

And I’ve told Justice Kennedy in the back room, I understand 

what ‘‘proportionate’’ means, but I haven’t yet figured out what 

‘‘congruent’’ means. The nominations for the court are very much 

an issue in the Presidential campaigns, very much an issue as to 

the approach of the candidates for the presidency, as to the composition of the court. I think there’s been great public interest in 

the confirmation proceedings with Chief Justice Roberts and Justice Alito. 

My own view is that when you talk about government—and this 

isn’t entirely applicable, but pretty much—when you talk about 

transparency, that’s what we seek so people understand what goes 

on in government, or in Brandeis’ words, that ‘‘sunlight is the best 

disinfectant’’. Well, we don’t need a disinfectant, really. There’s a 

lot known about the court. But the reality is, television is the way 

people understand what is happening in the world. 

A number of the justices have spoken on the subject. I believe we 

have it right when the Supreme Court has the final word. Somebody has to be the ultimate arbiter, and I think that Marbury v. 

Madison had it right. 

But understand, the court is of really high value. When the court 

decides all of these questions, including who will be the President—

in Bush v. Gore in the year 2000, the Presidency was decided by 

a single vote, 5 to 4. 

The Congress has a good bit of decisionmaking power on how 

many justices there are. We set the number at nine. We all recollect the court-packing effort to try to raise the number to 15, but 

that’s a congressional decision. Congress decides when the court 

will start to sit, the first Monday in October. Congress decides 

what is a quorum on the court, six. We respect the issue of separation of powers. 

It has been my hope that the court would see the public interest 

and come to accept televising on its own, but I think the Congress 

has something to say and the Judiciary Committee voted out, 12 

to 6, legislation to call for televising the court, subject to the court’s 

decision not to on individual cases. A bipartisan bill has been introduced again this year, so it is a matter of considerable concern. 

I know that what Justice Kennedy says here today will have 

extra currency because many people will watch it on C–SPAN. My 

concluding comment, Mr. Justice Kennedy, is the Judiciary Committee has special standing with C–SPAN. Our programs are 

broadcast at 3 a.m. We have a tremendous following among America’s insomniacs. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

The only problem with that following among insomniacs, Justice 

Kennedy, is that if I really screw up in one of these hearings, I 

hear from every single one of those insomniacs in letters and emails. 

But I want to thank the Justice for appearing here. It was 19 

years ago that he last appeared before this committee as a nominee 

to the high court. I was a member of the committee at that time. 

As Senator Specter says, it was a tumultuous time following Justice Powell’s retirement and the unsuccessful nomination—controversial nomination—of Judge Robert Bork. We overcame that diVerDate 0ct 09 2002 12:32 Apr 11, 2007 Jkt 034448 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\34448.TXT SJUD1 PsN: CMORC
6

vision and we united to support the confirmation of Justice Kennedy. Both Senator Specter and I voted for him in the committee 

and on the floor. 

He is a native of Sacramento, California. He received his AB 

from Stanford University in 1958, spent a year at the London 

School of Economics, graduated Phi Beta Kappa. 

After graduating cum laude from Harvard Law School in 1961, 

he returned to California, taking over his father’s law practice in 

1963. In private practice, he taught constitutional law. 

In 1975, he was nominated by President Gerald Ford for a vacancy in the U.S. Court of Appeals for the Ninth Circuit, becoming 

the youngest judge in that court. Something I did not realize until 

the Justice mentioned it out back, he is one of only three Circuit 

Court judges nominated by President Ford. 

He’s seen as a conservative in what was then a more liberal 

court. He has always been an active member of the judiciary, serving on committees of the Judicial Conference. I don’t recall the last 

time a sitting justice appeared before the Judiciary Committee to 

discuss legislative issues affecting the judiciary. 

I know Senator Specter and I are always treated with great respect when we appear before the Judicial Conference. I would hope 

members would accord the same. Not so when we appear before 

court for arguments, though. 

[Laughter.] 

And you have reminded the Judicial Conference and the members of the court of that fact. 

Justice Kennedy, the floor is yours, sir. 

STATEMENT OF ANTHONY M. KENNEDY, ASSOCIATE JUSTICE, 

SUPREME COURT OF THE UNITED STATES, WASHINGTON, DC 

Justice KENNEDY. Thank you, Mr. Chairman and members of the 

committee. It is a pleasure to be with you today. 

With me in the front row to attend these hearings and to answer 

detailed questions on the legislation, if I do not have those responses for you, is U.S. District Judge Hornby from the District of 

Maine. The Director of the Administrative Office of Courts, Jim 

Duff, and the Administrative Assistant to the Chief Justice of the 

United States, Jeff Mineave. 

You mentioned my unanimous confirmation, Senator Specter and 

Senator Leahy. If I was of some small catalytic assistance in bringing about broad senatorial consensus, I am very proud. 

In my written statement, which I will not read but refer to just 

briefly, I began by saying that ‘‘separation of powers’’ and ‘‘checks 

and balances’’ are terms that we use interchangeably, synonymously, but they actually have very different thrusts. 

Separation of powers is designed to assure that each branch of 

the government has the resources and the authority to perform certain of its constitutional duties without over-reliance on the other. 

The President has the power to pardon, the Senate has the sole 

power to initiate legislation, and of course, the power of the purse. 

The judiciary has the power to issue final judgments. Judges have 

life tenure. This is essential if each branch of the government is to 

be efficient and forthright in the exercise of its duties. 

7

On the other side is the mechanism of checks and balances, and 

it works somewhat the other way. Checks and balances recognizes 

that the three branches of government are really engaged in a common enterprise, a common purpose, and we have to have substantial interaction with each other. 

As Senator Specter mentioned, the jurisdiction of the courts, the 

rules of venue, the size of the courts, the structure of the courts, 

the structure of the circuits, is for the legislature to decide, and 

this is as it should be. 

Students both here and abroad are fascinated that Justice Thomas and I, for the last 10 years or so, appeared before the Subcommittee on Judicial Appropriations in both Houses of the Congress. It is more than a formality. It is more than simply a courtesy. It has a legal effect which is of tremendous importance. 

By custom we are very cautious about our budget requests, and 

we think there’s a custom that the Congress gives great deference 

to that request. When we appeared before those committees in recent years, the questions have ranged rather far afield from the 

budget and from our appropriations request. 

Justice Thomas and I have talked about that and we have concluded that the questions are actually quite educational for us. 

They help us understand the difficulties that Congress has in allocating resources, and we hope that the answers we give are somewhat informative to the other side of the witness table. 

So when we received your invitation to testify, Mr. Chairman, 

when the Chief Justice received that invitation, we initially had 

some pause as to whether we should come, but for a number of reasons we concluded that it was quite proper for us to do so, and we 

willingly do so. We appreciate your invitation, although we have to 

be guarded and come before you not too often so that we do not 

intrude on your functions. 

This is an important time for the judiciary. It’s an important 

time for the concept of judicial independence. The Chief Justice 

asked me to appear and it is my pleasure to be here. Thank you. 

Thank you very much for asking us. 

Chairman LEAHY. Thank you, Justice Kennedy. 

Justice KENNEDY. I would like to mention just a few more points 

about my opening statement. 

Chairman LEAHY. Sure. 

Justice KENNEDY. But please interject as you choose, Mr. Chairman. 

Chairman LEAHY. No. Go ahead. If you wanted to add something 

more, please feel free. 

Justice KENNEDY. Just a few things. 

Judicial independence is just like separation of powers and 

checks and balances. Those phrases do not appear in the Constitution. They are part of the constitutional dynamic that we use. They 

are part of the constitutional custom, part of the constitutional tradition that we have. 

Judicial independence is sometimes overused by judges. Just because you can’t get a few more volumes in your library doesn’t 

mean judicial independence is under attack. It’s unfortunate if we 

over-use the term, because it is essential as a principle to establish 

8

the idea that the rule of law depends on an independent judiciary, 

or else you have the rule of power, not the rule of law. 

Judicial independence is something that is eagerly sought by judiciaries throughout the world, and they look to the judiciary of the 

United States as an example. The Congress of the United States 

has been very generous with the courts, with courthouses, with 

staff, with libraries, with software. Our physical facilities are the 

envy of the world. 

But as you mentioned, Mr. Chairman, the condition of our salaries is something that requires discussion. It is a subject that is, 

frankly, most awkward for me to talk about. It is a sensitive subject, but I think we should discuss it in a candid and frank way. 

The raw fact is that the congressional policy with reference to judicial compensation is threatening the excellence of our judiciary. 

Judicial independence presumes an excellent judiciary. 

I have got some graphs in my statement showing that the real 

income of the average American worker has risen by 15 percent, 

and the real earnings of the judiciary and the Congress have decreased in the same period of time by 25 percent. That is a 43 percent differential. 

This committee recognizes that urgent action is required, just as 

urgent action is required for the security measures that you’re considering in the bill today. 

It is very important that you keep in mind the objective of restor- ing the judiciary to its preeminent place, the sum of $160,000 for 

a District judge, the present salary, sounds like a lot of money to 

the average American, and it is. But it is insufficient for us to attract the finest members of the practicing Bar to the bench. The 

Anglo-American tradition has been that we draw judges from the 

finest ranks of the practicing Bar. We are no longer able to do that. 

No one says that a judge should get as much as a senior partner 

in a New York law firm, or anything close to a one-to-one ratio. But 

there are benchmarks: what a senior associate in a major law firm 

gets in a city in the United States, what a junior partner gets, 

what a beginning lawyer gets. 

Our law clerks leave and they are paid more the year after they 

leave us than we are. These are benchmarks that are real. It is not 

just a matter of the two staffs sitting down and talking about alternatives and coming up with some number. 

It is a question of restoring the place of the judiciary so that it 

has the eminence that it once did, because we simply can not attract the people we once did. The U.S. District Court for the Central District of California, which is in Los Angeles, has a number 

of vacancies. Judges have to work 6 days a week. They have a terrible backlog. But we just can’t attract new judges. They look at 

the salary and they do not want it. We have a chart showing the 

declining number of judges who are entering from private practice 

that is attached to this statement. 

Now, of course, the intangible rewards of public service are of 

tremendous importance. I grew up in Sacramento, California. Most 

of my parents’ friends were employees of the State of California: 

Director of Finance, Director of Department of Natural Resources, 

Director of Transportation, Legislative Counsel. These were the finest civil servants I had ever met. They were like the British civil 

9

servants. They were proud to work for the government of the State 

of California. Looking back, I think they were my role models. 

Of course, there are intangible rewards to judicial service, to civil 

service, to government service. My colleague, Justice Breyer, observed to me the other day, the government is not the only way to 

get those intangible rewards. You can teach. You can transmit the 

values of our Constitution. You can transmit our heritage to those 

young people who will soon be the trustees of that tradition, the 

trustees of that heritage. 

There is a tremendous intangible reward for teaching. And we’re 

losing judges to the teaching profession. One of the finest judges 

in the United States, a U.S. district judge, the Chief Judge for the 

Eastern District of California, left in the middle of his career. He 

left everything on the table: no retirement, no pension, and became 

dean of a major law school. So not only are we losing judges coming 

in, attorneys coming in, we are losing judges from the bench. 

Now, the present Chief Justice and the former Chief Justice referred to this as a crisis, and I think what this was intended to convey is that this is an important moment. If salary relief is not 

given with the objective that I indicated, of restoring the judiciary 

to its proper position, I think it is almost counter-productive. 

You referred to the court-packing incident, Senator Specter. That 

was a real judicial crisis, just like Dred Scott’s self-inflicted wound 

was a judicial crisis. In the court-packing crisis, it was 1937. There 

were 16 Republicans in the U.S. Senate. The President was very 

powerful, and he wanted to pack the court. The Senate found, the 

President found, that the American people were offended, that 

there was a reservoir of trust and respect for the courts that far 

exceeded what the President thought. That must continue to remain true. The law lives in the consciousness of the people and the 

people’s respect for law is, in large part, linked to the respect for 

the judiciary. 

We have senior judges who are very hard-working judges. They 

keep our system afloat, many of them. Some of them do not have 

to work full-time, but most of them are required to take a one-third 

workload. They are required to take a one-third workload to keep 

the staff in their chambers. Most of them take a full load. 

I think it’s quite wrong for the Congress to barter this commitment, this diligence, this good faith, this civic dedication for purposes that have nothing to do with judicial pay. 

So, Mr. Chairman, thank you very much for allowing me to make 

these remarks. I hope that the committee will understand that the 

judges cannot really make the case for their position, and your 

committee can be of great assistance in helping us state the issues, 

in explaining it to your colleagues, and explaining it to the entire 

Congress, and by your very prompt action to address the problems 

of judicial security and judicial independence. You indicated your 

continuing interest in the judiciary of the United States, and for 

that we thank you. It is my pleasure to be here. 

[The prepared statement of Justice Kennedy appears as a submission for the record.] 

Chairman LEAHY. I thank you. I would note that the judges cannot make the case. You, as did the Chief in his year-end report, 

made the case very strongly. It is interesting. 

10

Both you and Senator Specter talked about the court-packing 

matter. Here was a case where you had a Democratic President, 

highly popular, overwhelming Democratic majority in the Senate, 

but instead of acting like a rubber stamp, as Congresses sometimes 

do with a President of their own party, the checks and balances of 

our system work very well, because a Democratic-controlled Senate 

said no. 

Even though there were a lot of reasons why most of them were 

disagreeing with decisions in the Supreme Court at that time, especially with some of the New Deal legislation, but instead of acting 

like a rubber stamp, as we’ve seen in recent times, they did not. 

It’s a good example for all of us, not only for the courts, but for the 

Congress, for each of the separate branches. There’s supposed to be 

checks and balances. 

As I mentioned earlier, we will be going further into the pay 

issue. I noticed with great apprehension the rise in volume and vehemence on attacks on judges and their decisions, both from the 

outside, and sometimes inside, the government. 

I know Justice O’Connor was criticized in civil tones of attacks 

on the judiciary. In a speech, she said that this would actually endanger the independence of the judiciary: when you hear rhetoric 

comparing judges to terrorists, of threatening judges with punishment for decisions they don’t like, that’s irresponsible; when James 

Dobson compares the Supreme Court to men in white robes, the 

Klu Klux Klan, it shows how out of touch he is with American values; when a Chief of Staff to a U.S. Senator calls for consideration 

of mass impeachments, it’s wrong; as the then-Republican Majority 

Leader of the House espoused an impeachment threat against justices who decided cases in which he disagreed. 

I’ve been here 32 years and I can point to a lot of cases over the 

years where I may disagree, and other members of this committee 

would agree, and vice versa. Are we going to, those who are in disagreement, we automatically start impeachment procedures? I 

mean, how do you respond to that? Do you agree with Justice 

O’Connor’s concern about this kind of attack? 

Justice KENNEDY. Well, a few things occur to me. Democracy is 

a pretty hurly burly operation, rough and tumble. 

Chairman LEAHY. Wouldn’t have it any other way. 

Justice KENNEDY. And the court, since the beginning of our history, has been involved in cases that have political ramifications. 

Courts do not decide them in a political way. They do not decide 

them in a political language. For example, slavery was not something talked about, it was so controversial. 

Aside from that, the most controversial issue in the first 30 years 

of our history was whether there should be a national bank. The 

court rushed right into the controversy by deciding McCullough v. 

Maryland. It didn’t decide it in a political way, it decided it in its 

own judicial language. 

There was tremendous controversy over what the court did. And 

it is right that people debate both the Constitution and the decisions of the court. The Constitution doesn’t belong to a bunch of 

judges and lawyers. It belongs to the people. 

If a President is not an attorney, he has the obligation, still, to 

interpret the Constitution. We know that. If a Senator or CongressVerDate 0ct 09 2002 12:32 Apr 11, 2007 Jkt 034448 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\34448.TXT SJUD1 PsN: CMORC
11

man is not an attorney, he or she has the obligation to interpret 

the Constitution. 

So the idea of criticism and disagreement is nothing new. I think 

that the scurrilous, really shameful remarks that you refer to are 

something that democracy has learned to live with. Democracy is 

old. Plato and Aristotle wrote about it. But democracy, with the 

mass media, is still something we’re getting used to. We still have 

to find the right tones so we have a civil, rational, respectful, principled dialog. 

Chairman LEAHY. But to go to a bottom line on that—

Justice KENNEDY. And I, frankly, don’t think judges are intimidated by some of these words. I think they’re improper, and coming 

from attorneys, I think they’re wrong. 

Chairman LEAHY. But Chief Justice Rehnquist said, and said in 

a very straightforward way, ‘‘Judges judicial acts may not serve as 

a basis for impeachment,’’ and then said, ‘‘any other role would destroy judicial independence.’’ Do you agree with that? Of the judicial acts? 

Justice KENNEDY. Of course. The first impeachment of Justice 

Chase established, again, a good separation of powers rule. The 

Constitution does not say exactly the grounds of impeachment. It 

says the judges hold their offices during good behavior. But it has 

been established and it is part of our constitutional tradition that 

the decisions of the court, as you indicate, Mr. Chairman, are not 

the bases for impeachment—it is part of our constitutional tradition. 

Chairman LEAHY. You’ve spoken quite a bit about the risk to administration of justice in this country if we don’t rectify the pay 

issue. I assume you agree with the position I’ve taken, and others 

have here, to de-link the cost of living adjustment for Congress and 

the judiciary. 

Justice KENNEDY. Well, I do. Linkage has been a failed policy for 

both sides of the bargain. I understand that Congressional Members often maintain two residences. They have tremendous travel 

expenses that we do not. So, that’s a problem that should be addressed. 

On the other hand, we simply cannot wait another 20 years. We 

have benchmarks. I think you should set judicial salaries and, in 

due course, whenever in your discretion you decide to do so, set 

congressional salaries as well. But the so-called linkage has been 

unfortunate and it has hurt the judiciary badly. I think it’s quite 

unprincipled and quite unfair. 

Chairman LEAHY. Thank you. 

Senator Specter? 

Senator SPECTER. Thank you, Mr. Chairman. 

Justice Kennedy, your appearance here today is powerful. When 

people see you on television, a sitting Supreme Court Justice 

speaking about the rule of law and independence and compensation, you carry great weight. 

People don’t ordinarily see a Supreme Court Justice addressing 

these kinds of issues. It is powerful. I think it is powerful, as I listen to it. I’ve had the opportunity to know a great deal about the 

Supreme Court. When I walk into the Supreme Court chambers, 

12

I’m in awe, quite frankly. You’re used to it because you are there 

all the time. 

Very few people can get into Supreme Court chambers because 

of limited seating, and once there, they stay only a few minutes 

and rotate out. This is part of why I would like the American people to know more about the court, to see you there. When you say 

it doesn’t belong to the judges and a bunch of lawyers, it belongs 

to the people, I think you’re right on the money. The question is, 

how do we get it there? 

The Supreme Court, in a major case, Richmond Newspapers v. 

Virginia back in 1980, said this: ‘‘A public trial belongs not only to 

the accused, but to the public and the press as well. People acquire 

information on court proceedings chiefly through the print and 

electronic media.’’

Well, when you talk about a public trial or you talk about judicial proceedings, you talk about, you said, respect for law is dependent on respect for the judiciary. The direct implication is, respect for the judiciary is understanding what the judiciary does. 

Now, when the court said that in the Richmond case in 1980, television was much less pervasive than it is today. 

While there are objections in terms of lawyers playing to the 

cameras, or maybe even justices changing their approach, isn’t 

there necessarily great value in communicating to the people what 

the court does if the people could see the inside of that room and 

see the nine of you there in your black robes, and see the way you 

approach these issues? 

Justice KENNEDY. There is no question, Senator, but that the 

working of the Supreme Court, because that’s a good perspective to 

understand constitutional dynamics, is of intrinsic interest. It is 

also an essential interest if we are to have an informed and enlightened citizenry. I have no quarrel with that. 

A majority of my court feels very strongly, however, that televising our proceedings would change our collegial dynamic. We 

hope that the respect that separation of powers and checks and 

balances implies would persuade you to accept our judgment in this 

regard. 

We do not discuss a case in advance of going on the bench. It’s 

a fascinating dynamic. I ask a question. I say, ‘‘Isn’t it true there’s 

standing because Congress has granted it under the statute? ’’ And 

one of my colleagues, say, Justice Scalia, will say, ‘‘But isn’t it true 

there is an Article 3 component? ‘‘We are talking with each other, 

and sometimes the dynamic works and sometimes it does not, but 

we are using the attorney to have a conversation with ourselves 

and with the attorney. 

This is a dynamic that works. We have only a half hour per side, 

an hour per case. Please, Senator, do not introduce into the dynamics that I have with my colleagues the temptation, the insidious 

temptation, to think that one of my colleagues is trying to get a 

sound bite for the television. We do not want that. 

Please do not introduce this into our intercollegial deliberations. 

We do not want it. We are judged by what we write in the Federal 

reports. We have a timeline, a language, a grammar, an ethic, an 

etiquette, a formality, a tradition that is different from the political 

branch. It is not better. It is not worse. It is different. 

13

It’s a different language, a different dynamic. We teach when the 

cameras do not come in the courtroom. We teach. They do not come 

into the courtroom because we are judged by what we write in the 

United States report and we’re judged over a long period of time, 

not by the moment. We think cameras would change our dynamic. 

We think it would be unhelpful to us. We understand the intrinsic 

interest in much of what we do, and that’s beneficial. We probably 

should do more in the way of teaching, et cetera. 

But we have come to the conclusion that it will alter the way in 

which we hear our cases, the way in which we talk to counsel, the 

way in which we talk to each other, the way in which we use that 

precious hour, and I hope that the Senate would defer to us, as a 

separate branch of the government. You mentioned, we told the 

Congress about its reasoning in, what was it, Morrison v. Roncella? 

Chairman LEAHY. Method of reasoning. 

Justice KENNEDY. It’s a non sequitur to use that, to say that you 

can have cameras in the courtroom. We did not tell Congress how 

to conduct its proceedings. We said that, in a given statute, we 

could not find any evidence that Congress had shown us that interstate commerce was involved. 

Senator SPECTER. Mr. Chairman, a very brief, concluding comment. 

Justice Kennedy, I understand your concern about changing your 

collegial dynamics, and I respect your conclusion on that. I think 

you overstate it when you refer to some insidious conduct. I think 

that overstates it. But it seems to me that it balances all of what 

we decide is, to the potential impact on the way you conduct your 

proceedings with the public benefit for knowing what you do. 

I’ve always admired the way the court presents itself as ‘‘opinion’’ 

of the court. It’s not dogma. It’s not for holy writ. It’s an opinion. 

If Congress passes my bill, it will be only the opinion of the Congress because you have the last word. 

You can say it is inconsistent with the separation of power, and 

we would respect it. So it’s our opinion, and that would be your 

opinion, and we would defer to your opinion in that context, obviously. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Senator Kohl? 

Senator KOHL. Thank you very much. 

Justice Kennedy, many of us have been concerned for years 

about the continuing use of secret settlements in our courts. This 

issue received a lot of attention in the Bridgestone Firestone cases 

in the late 1990s, yet little was done to reform the system in the 

wake of that scandal and the use of these agreements, as you 

know, continues today. 

One of the most recent examples involves Eli Lilly and one of its 

drugs, Iprexa. In 2005, it settled about 8,000 cases, all of which 

prohibited plaintiffs from discussing the facts of their case publicly. 

As a result, Lilly continued to sell their product and had sales of 

over $4 billion in that year. 

But in 2006, lawyers in an unrelated case leaked documents detailing some of the drug’s serious side effects and Lilly was then 

14

forced to settle another 18,000 cases. Many of these injuries would 

have been avoided had those original settlements not been sealed. 

These secrecy agreements allow plaintiffs to get a respectable 

award and a defendant is able to keep damaging information from 

getting out. The public remains unaware of the critical public 

health and safety information, and they pay a heavy price. Many 

of us feel strongly that protective orders are not supposed to be 

used for the purpose of hiding damaging information from the public. 

Do you believe that courts should be required to review such settlements to ensure that public health and safety information is not 

being hidden from the public? 

Justice KENNEDY. Senator, this is a complex and quite interesting issue that I have not thought through. I see some real dangers of abuse in what you have pointed out. There are some things 

that have to be sealed: probation, pre-sentence reports, where we 

have witnesses whose lives are in danger, cases with trade secrets 

where one company is stealing another’s trade secrets, formulas, 

and so forth. These should be sealed. 

You point to a different area, which is products liability. I think 

there are some serious concerns in what you say. How the dynamics of it would work, I am not sure. 

It could be, if you had, say, an absolute prohibition against stealing, you would just divert that to arbitration, which would, I think, 

be counterproductive. I am very concerned that we are arbitrating 

too many things and the courts are not seen as the purest, finest 

fora for litigation of issues. 

Perhaps there could be some appellate procedure, some discretionary oversight. I just have not thought it through, Senator. But 

I have to say that you have pointed out a potential abuse that I 

think requires further study. 

Senator KOHL. Well, those of us are concerned that it would require—and I have a piece of legislation—that a judge review a settlement of that nature and make a determination whether public 

health and safety is involved. So it’s not absolute. It would be subject to a judge’s opinion, exercised in a flexible and a reasonable 

manner. How does that hit you? 

Justice KENNEDY. Then I would have to ask if he makes that decision before the settlement has been reached. 

Senator KOHL. No. Once a settlement has been reached—

Justice KENNEDY. Because otherwise that settlement might be 

conditional. I just do not know the dynamics of it. 

Senator KOHL. I guess I would conclude by marking that what 

you are saying is it does deserve consideration. 

Justice KENNEDY. Absolutely. Absolutely. Although I haven’t 

thought it through. 

Senator KOHL. One more, please. States are required to provide 

meaningful access to court proceedings for individuals with limited 

English proficiency. 

Unfortunately, too many State courts do not have the resources 

to provide adequate interpreter services and as a result many nonEnglish speakers do not understand what is happening when they 

appear in court. 

15

The shortage of qualified interpreters has become a national 

problem and it has serious consequences. In Pennsylvania, a committee established by the State Supreme Court called the State’s 

interpreter program ‘‘backward’’ and said that the lack of qualified 

interpreters ‘‘undermines the ability of the court system to determine facts accurately and to dispense justice fairly.’’

Other States have had some success. My own State of Wisconsin 

got a program off the ground in 2004 using State money and a 

$250,000 Federal grant; certified interpreters were scarce, but they 

were there. 

Now, just a few years later we have 43 certified interpreters. I 

will soon be introducing legislation to provide additional Federal 

assistance to our State courts by authorizing a grant program to 

help States improve their State court interpreter programs. 

Do you see this as a serious problem in our court system, and 

can you give us a system of how inadequate translation services 

can, indeed, affect individuals’ access to our courts? 

Justice KENNEDY. It is a problem, Senator, that has been around 

for a number of years. In my own State of California, we were familiar with the problem. You have a long colloquy between the interpreter and the witnesses, and then the interpreter turns and 

says ‘‘yes’’ or ‘‘no’’. This is frustrating for the jury. It is frustrating 

for the judge. 

We have had cases where the jurors will be bilingual and will be 

hearing the conversation, and one of the jurors will say, ‘‘That’s not 

what he said, you’re an idiot,’’ to the reporter. So, we have these 

outbursts. This is not how the judicial system should be run. 

So, of course it’s a problem. You ask me to quantify it. I know 

the problem has been around for many years as we have an increasing population of non-English-speaking people. I am sure that 

it is being aggravated, and I think it is very important that adequate provision be made. 

Sometime you ought to go to the central dispatch headquarters 

in the Los Angeles police department. They have interpreters for 

40 or 50 languages so they can give Miranda warnings over the 

radio. It is quite fascinating to see. 

Senator KOHL. Thank you, Mr. Chairman. 

Chairman LEAHY. I chuckle listening to this, because in my early 

days of trying cases in Vermont, translating would usually be 

French and English, and half the jury would be bilingual at that 

time. 

I find this fascinating. When I was in law school, we had an opportunity where a number of us, for a particular reason, were invited to a luncheon where almost every member of the Supreme 

Court came, and their insistence had been that each member would 

sit at a separate table with a group of students. 

My wife and I were able to sit with Hugo Black. I was listening 

to his discussions. I was thinking it was a seminar all by itself, a 

semester seminar all by itself, at lunch. Now, in many ways your 

testimony has been the same. 

Senator Sessions? 

Senator SESSIONS. Justice Kennedy, thank you for your appearance here and your comments. I’ve got to say that I think the 

American judicial system, in particular the Federal court system, 

16

is one of the great strengths of our Nation. I’ve had the opportunity 

in this office to travel around the world and to see the difficulties 

other nations have in progressing. 

I’ve become more convinced than ever that our fundamental 

strength lies in a legal system, in a perception by the people that 

the courts make objective decisions based on the law and the facts, 

and therefore they’re willing to acquiesce in them. Congress acquiesces even if we disagree sometimes. 

But we’re not really interested in courts’ opinions on foreign law. 

We’re interested in the fidelity of the court to the Constitution and 

the laws of this country, which requires a certain degree of self-restraint that I think, in the last 30 years or so, has not always been 

there. 

I think it has a danger to corrode public confidence, and rightly 

so. When the court declares something that is more appropriately 

a policy decision, instead of a decision ordered by the Constitution, 

instead of the Constitution says this, then basically the American 

people are denied that policymaking capability. 

So, that’s a sore spot with the American people. I know you understand that, but I just wanted to share that with you because in 

the long run, acceptance by the public and respect by the public of 

the court is critical to this magnificent legal system that we have. 

And we must make sure that we are within that ambit of what’s 

legitimate interpretation and not going beyond that. It has the danger of corroding that public respect. 

Maybe if you want to comment. I just wanted to share that as 

an opening thought in light of my other colleagues’ suggestions. 

Justice KENNEDY. When you go to these foreign countries, Senator, I know you see systems struggling to have an independent judiciary. And the judges understand it. They really want it. It is 

tragic to see that there are one or two steps forward, then another 

step back. Some judiciaries, which I thought were moving quickly 

toward independence, are now going the other way. So, of course, 

we must continue to be a model. 

We don’t think much about Nepal. It’s a small country, 3 million 

people. They had the Shakespearean tragedy of the king being shot 

by the heir apparent, and then they found out that the legislative 

branch had embezzled all the money. 

They had a Maoist conspiracy, a Maoist uprising, a Maoist terrorist group. The only person in the country who had any credibility was the Chief Justice. He came to Washington. There was an 

assassination attempt and four people were killed in an assassination attempt on the court. 

He came to the State Department and they sent him over to me. 

He was a scholarly, erudite, wonderful man. And, you know, judges 

check each other out. You could tell he had the temperament of a 

fine judge. So I asked him about Nepal, what was going on. I said, 

‘‘What can we do for you? What can I do? ’’

He said, ‘‘Justice, just keep on doing what you’re doing. You’re 

an example for the rest of the world.’’ Then he walked down the 

steps by himself. That made me feel good, as the host. I could tell 

this to my colleagues. But it also occurred to me that we are not 

doing enough to indicate that the American Constitution defines 

our people. 

17

By historical accident, providence, and design, I think, Americans 

identified with their legal documents, the Declaration of Independence and the Constitution. When we told England that we wanted 

our freedom, people were puzzled. They said, ‘‘What are the Americans talking about? They are the freest people in the world already. 

What do they want? ’’

We gave them a legal answer. We gave them the Declaration of 

Independence, which was like an indictment of King George, III, 

then, later, the Constitution. If you ask an American what he is, 

what she is, they say we are bound together by this Constitution 

that we have. You’re so right, that we must never endanger that 

link, that fortuitous, that providential connection that the American has with his or her Constitution. 

Now, insofar as the sources that judges use, I think the judge 

has to tell the litigants what he thinks, what she thinks, and why 

they think it. I think we have to find wisdom where we can. This 

is quite different from saying that we are bound by some foreign 

document. 

Senator SESSIONS. Thank you. My time is about up. 

Chairman LEAHY. Did you have something further? Briefly. 

Senator SESSIONS. Briefly, I will just say this. I think it is a 

threat to the independence of the judiciary if a judge, at confirmation, is required to pre-judge a case that he’s not yet heard. I think 

that’s a danger that we got close to in recent confirmations, and 

perhaps we drew back before going too far. 

With regard to salaries, I don’t think it’s unprincipled to link salaries in Congress and the judiciary and would note, it depends on 

when you pick the date. When you became—I believe on the Supreme Court—your salary as a Court of Appeals judge, was 

$95,000 in 1988. 

Today, that salary is $175,000, which represents $13,000 more in 

cost-adjusted 2006 dollars than would have been the case. So 

there’s some points, if you go back, it’s worse; there will be some 

points where it’s better. I wanted to mention that and thank you 

for your comments about television. 

You explained, in an articulate way, my unease about requiring 

cameras in the courtroom. I think about—the lawyers know what 

the judge means. The other judges know what the judge means 

when he asks a certain question. 

Do you think that the judge might feel it necessary, if the whole 

country is looking at it, to go into a long explanation of why he or 

she is asking this question, and other things that could undermine 

that dynamic? 

Justice KENNEDY. Precisely. I do not even want to think that 

that is what is happening. 

Senator SESSIONS. Thank you, Mr. Chairman. 

Chairman LEAHY. Would that be considered a leading question, 

Senator Sessions? 

[Laughter.] 

Going by our normal procedure, alternating sides and at the time 

when Senators come in, I would yield to my distinguished colleague 

from Maryland, Senator Cardin. 

Senator CARDIN. Thank you very much, Mr. Chairman. 

18

Justice Kennedy, it is a pleasure to have you before this committee. This is a unique opportunity to be able to question a Supreme Court Justice, so I want to move forward on the independence of the judiciary, because I am concerned about the points that 

you’ve covered in your comments before our committee in response 

to questioning. 

The compensation issues are critically important, and we need to 

address the concerns that you have brought out, the unfair, or 

going overboard on criticisms of judges that has been pointed out 

here today, and threatening impeachment. 

But I want to go a little bit further and just get your views as 

to other areas that we should be looking at that are important to 

maintain the independence of the judiciary. I don’t mean just at 

the Federal levels. I’m also talking about our State courts. 

It seems to be fair game here to strip courts of jurisdiction if we 

don’t like the decisions, at least try to do that, either by changing 

the ability to get into Federal courts or by literally taking away the 

Federal court’s jurisdiction. 

When I served in the House, there were several bills that passed 

the House that dealt with taking away from the Federal courts jurisdiction because Congress didn’t like the decisions of the Federal 

court, or at least those that had the votes in the Congress. Those 

bills were not going to pass the U.S. Senate. I think we all knew 

that at the time. 

I’m just interested as to your views on the points that you’ve 

raised about maintaining the quality of our bench and maintaining 

the independence of our judiciary, whether these are issues that we 

should be concerned about, whether there are other issues in addition to compensation and unjust criticisms of our judges, are ones 

that we should at least put on our radar screen. 

Justice KENNEDY. Thank you, Senator. I think one of the big concerns about judicial independence is a subject that probably is not 

one that the Congress of the United States, as a Federal entity, 

would want to address, and that is the problem of elected judges 

in the States. 

The experience has been that if there’s a contest and the challenger says something about the existing judge that the judge is 

soft on crime because he’s followed Supreme Court decisions, that 

judge has to answer. They cannot let that charge go unanswered, 

so he or she has to have a campaign chest. 

I had hoped that Bar associations, interested groups who are 

concerned about our civic dialog, would use these judicial elections 

as a way to explain what judicial independence means. What are 

the requisites of judicial independence? What is good judicial temperament? What qualities do you look for in a judge? That is not 

happening. I do not think it is a subject that you can easily address, or perhaps that you should address because of the Federal 

balance. 

But I think we should be aware of it and assist the States that 

are trying to bring some logic, some fairness, some civic discourse 

into State elections. I think that is a big concern for judicial independence. 

Senator CARDIN. In regards to election of judges, in my own 

State of Maryland, for our appellate court judges, they now run 

19

against their record. It seems to be working successfully as a way 

of getting around competitive elections. 

It’s a tough issue politically to deal with because it’s not necessarily challenging the independence of the judiciary, but the appropriate diversity on the bench. It’s difficult to take on those 

issues in many of our States. But I agree with you. I have always 

supported removing our State judges from the election process, but 

we have not been successful in doing that at our Circuit Court 

level. 

Justice KENNEDY. I think in most States you are not going to be 

successful. This was an Andrew Jackson doctrine for elected judges. 

In a country where judges have such authority, I can see why the 

voters would be very reluctant to surrender the authority they 

have to choose them. 

The challenge, and perhaps the opportunity, is to use these elections to educate the public and to educate ourselves better as to the 

requisites of judicial independence. I think we have an opportunity 

here we are not using. 

Senator CARDIN. Without commenting on a specific effort to take 

away jurisdiction from the courts based upon a decision, but just 

a general strategy of the Congress to try to adjust jurisdiction 

when we don’t particularly favor the court opinions, do you look at 

that as a concern or you just look at that as part of the political 

realities of the legislative branch of government? 

Justice KENNEDY. I think that were such statutes to be enacted, 

that they themselves would have some constitutional questions 

about them and I’m reluctant to comment. As you know, it’s been 

around a long time. The Bricker amendment in the 1950s was an 

example of attempts to strip the Federal courts of jurisdiction, and 

there were other proposals concerning school bussing and school integration. It has been around. But I think I should not comment 

on the constitutional dynamics of it. 

Senator CARDIN. Thank you. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you, Senator Cardin. 

Senator Cornyn? 

Senator CORNYN. Thank you, Mr. Chairman. 

Justice Kennedy, thank you for being here, and thank you for 

your longstanding service to our Nation and the judiciary. 

Justice KENNEDY. Thank you. 

Senator CORNYN. As you may remember from our previous conversations, I’ve had the honor of serving as a member of my State 

judiciary for 13 years, so it seems kind of surreal for me to be here 

on this side and talking to you, a member of the U.S. Supreme 

Court. 

But getting to the point of some of the questions earlier, from 

that experience and my experience practicing law, I’m sort of led 

to the conclusion that one of the things that has damaged our civil 

discourse the most is the predisposition, and it seems to infect folks 

once they get inside the Beltway more than otherwise, to regard 

adversaries on a particular point of view of from a particular perspective as personal enemies. 

One of the things I value the most about my legal experience and 

training is the idea of trying cases against an adversary in a court 

20

of law, and then obviously the next time you might end up being 

on the same side. But I do think that we can have disagreements, 

and hopefully we’ll keep those civil. But I, for one, am not particularly concerned that disagreements with the decisions of the judiciary have any real potential to endanger judicial independence. 

Here again, I know judges disagree. Matter of fact, we’ve had 

judges’ decisions read back during the course of confirmation proceedings when judges have said things like, ‘‘This is an act of judicial activism,’’ ‘‘ignores the text of the statute,’’ ‘‘to reach a predetermined result’’. Things that you might consider are pretty 

tough things that you would say but are the standard fare of a lot 

of judicial opinions. 

In fact, you made the point that Dred Scott was a self-inflicted 

wound on the judiciary itself. That’s certainly fair commentary. I 

happen to agree with that. But I think we can carry this idea of 

criticizing the decisions of the judiciary as perhaps endangering judicial independence too far, while at the same time I certainly 

would agree that we ought to try to make sure that we don’t view 

our people we disagree with as personal enemies. We ought to regard them, perhaps, as adversaries and conduct our discussions, 

our debates in a civil and respectful way. 

I remember, you were the author of an opinion in a case I argued 

and lost on the U.S. Supreme Court. Thankfully, you authored the 

dissenting opinion and agreed with me, and I thought that opinion 

was exceedingly wise and I agreed with it 100 percent. But it won’t 

surprise you that some of the things we have talked about here 

today I will agree with you on, and some of the things I will disagree with you on. 

I agree with you on the issue of judicial compensation. I happen 

to be the father of a first-year law student and I’m astonished at 

the starting salaries of new lawyers in some of the best law firms, 

the people that graduate at the top of their class, the kind of people 

that you want to recruit, and do recruit, as your law clerks. It is, 

I think, a serious problem and one that Congress ought to address 

and fix. 

With regard to televised proceedings, I would have to fall back 

on my own experience and disagree with your comments earlier 

about television and courtroom proceedings. From my own experience on the Texas Supreme Court, we had a fixed camera in the 

courtroom that was very unobtrusive and that recorded the proceeding. 

And while I agree with your concern, at least, that you don’t 

want to have judges trying to outdo one another in terms of asking 

questions in sound bites or hoping to get on the evening news, that 

it really did not exacerbate that problem, which, I have to tell you, 

my observation is that judges do tend to compete a little bit with, 

maybe not on the Supreme Court, but on appellate panels, who can 

ask the biggest zinger of a question, who can baffle the advocate 

by the question. 

I think there is a public educational function. I agree with Senator Specter, of allowing the American people to see how you do 

your work day in and day out on the bench. 

I understand your concern. I would just wonder if there might be 

some opportunity for us to work with you and your colleagues to 

21

try to find a way to allow the American people to see what it is 

you do day in and day out rather than to suspect that the Supreme 

Court is really not all that much different in the way it operates 

than, perhaps, Judge Judy or Law & Order episodes, where people 

do, I think, get a misimpression of how the judiciary does operate. 

Well, the rules of evidence don’t apply to these proceedings, as 

you can tell, because I’ve taken up all the time. But I do want to 

ask you one last question here. This has to do with the men and 

women who work in the U.S. Marshals Service. I think the safety 

and security of our judiciary is certainly one of the ways that we 

can maintain an independent judiciary. 

I am concerned that the current appropriation bill that we have 

on the floor of the Senate cuts $18 million from the U.S. Marshals 

Service, and I’ve offered an amendment which would restore that 

money. I won’t ask you about getting in the middle of that. I think 

it’s always dangerous, obviously, for the judiciary to get between 

members of the Senate and take sides. 

But I will just ask you to comment, if you will, on the importance 

of the role that the U.S. Marshals Service plays in the safety and 

security of the Federal judiciary. 

Justice KENNEDY. It is a vital role, Senator. As you well know 

from your experience on the judiciary, from being a lawyer, the litigant often sees the judge as the personal embodiment of the harsh 

law that is going to be applied against him or her, and even in civil 

cases—sometimes especially in civil cases. Domestic relations cases 

are ones where the emotions, for obvious reasons, run rampant. 

Then, of course, we supervise the whole criminal population, the 

criminal system where we had drug lords and gangs, people who 

have a real interest in disrupting the judicial system and intimidating judges. 

U.S. Marshals, we see nationwide. They protect us when we go 

to different cities. It is always reassuring to see the high quality 

of the people that we attract to the U.S. Marshals service. They are 

wonderful young people, very experienced ones that are coming in, 

and very experienced people who are in charge. 

I have not seen the numbers and I think it is not in the judicial 

budget so it is not something I would address at the Appropriations 

Committee hearing, but I am quite surprised that, in this day and 

age, they would cut funds for the Marshals Service. I, frankly, do 

not understand it. I am surprised that that is being proposed. But 

they are essential for us. 

I forgot to say when Senator Sessions was here, he would remember, and I was U.S. Circuit Judge for the 11th Circuit when 

Judge Vance a very fine U.S. Circuit Judge, from Birmingham, Alabama, was assassinated. The judges who are on the front lines and 

are the most visible, are U.S. District Judges. 

Circuit judges, too, can be targets, as the tragic case of Judge 

Vance will show. So the U.S. Marshals have to be ready to be 

there. Judges on the Circuit Courts and District Courts do get 

threats, and they are very upsetting and terrifying for yourself and 

your family. To have the U.S. Marshals Service there is necessary. 

It is not just the psychological assurance, it is necessary. 

Chairman LEAHY. Thank you. 

22

Senator CORNYN. I remember when John H. Wood was assassinated in San Antonio, or my hometown as well. 

Justice KENNEDY. Yes. 

Senator CORNYN. Thank you. 

Chairman LEAHY. Thank you. 

Senator CORNYN. Mr. Chairman, could I ask, just by unanimous 

consent, I know my time is overdone. On the matter of the division 

of the 9th Circuit, I would just ask unanimous consent to introduce 

a letter dated August 17, 1998 from Justice Kennedy to Justice 

White on that subject. 

Chairman LEAHY. Without objection, so ordered. 

Senator Durbin, you have been waiting here very patiently. 

Senator DURBIN. Thank you very much. Thanks, Mr. Chairman. 

Justice Kennedy, we are honored by your testimony. 

Justice KENNEDY. Thank you. 

Senator DURBIN. I’d like to also acknowledge that Judge Hornby 

has submitted some information for the record about the issue of 

court security, a particularly important issue to us in Chicago, Illinois because of a tragic situation a year or two ago involving one 

of our District Court judges. 

For the record some 80 percent of the Federal judiciary has 

taken advantage of home protection that’s been available through 

the U.S. Marshals Service. It’s an indication of their concern and 

I hope that this is helpful in giving them peace of mind. 

I also want to say that Senators Leahy and Specter are pushing 

the Court Security Improvement Act, which I think will even enhance our efforts to protect members of the judiciary from threats. 

We want them to be safe not only in their dealings on the bench, 

but also in their home life, and we’re going to do everything we can 

to make that happen. 

I’d like to address an issue which you characterized in your opening remarks as ‘‘delicate’’ and ‘‘difficult’’, and that’s the issue of 

compensation. I’d say at the outset that I have supported increases 

in judicial pay, but I’d like to ask you to bear with me for a moment and comment on another observation of this challenge. At the 

current time, members of the Federal judiciary are compensated by 

and large at the same level as members of Congress. 

You also, in the Federal judiciary, under the Rule of 80, have a 

circumstance where a judge can take senior status and take full 

pay for the rest of their lives. That is the nature of the retirement, 

which is a generous retirement offered to Federal judges. By most 

standards, 100 percent pay would be something most workers 

would dream of. 

I’d also note that you left private practice to engage in this public 

service, as most of us did here, now serving in Congress and those 

of us who are lawyers, and on this Senate Judiciary Committee. At 

the current time, our compensation—those on the panel and the 

compensation of most Federal judges—exceeds the compensation of 

95 percent of the people who live in America. 

The suggestion of giving Federal judges an additional $100,000 

a year, which some have suggested, would mean that our Federal 

judges would be paid more than 99 percent of all the people living 

in America working today. 

23

I find it hard to imagine that our founding fathers believed that 

an independent judiciary required compensation at a level higher 

than 99 percent of the people whom they work for in the United 

States. 

I understand what you say about the lure of private practice and 

compensation. I have a son who’s an attorney and I know what is 

paid by Chicago law firms to those fresh out of law school. I am 

happy that his salary is good—better than mine—and I think most 

fathers would feel that way about their children. 

But I ask you this. Two things. How do we deal with the reality 

that every day there are prosecutors and defenders and public sector lawyers who make a conscious decision that they are more committed to public service than they are to compensation, that they 

are prepared to do their jobs, understanding that in a short period 

of time they could move into the private sector and make dramatically more money, but they believe that public service is good and 

that the amount that they are earning is adequate for a lifestyle 

of at least minimal comfort, maybe a little more? 

Are we suggesting then that the only way to bring quality people 

and keep them in the judiciary is to keep a compensation level that 

is always at the highest level compared to private practice? 

Justice KENNEDY. Senator, as I indicated in my statement and 

as I said initially, there is no way that we can have anything approaching a one-on-one ratio with a senior partner of a firm, and 

you are not supposed to go on the bench to become wealthy. That 

is not the object. I do think that the framers wanted to have an 

excellent judiciary. 

John Marshall had to have his arm twisted to go into public service. Washington asked him for 3 days after Washington had retired 

to Mt. Vernon—please go into public service. Marshall was going 

to sneak out early in the morning, and there was the general in 

his uniform saying, ‘‘You’ve got to do this.’’ He left private practice 

with great reluctance, but, providentially, he gave a great gift of 

public service to the United States. 

But the statistics are something that we simply must face. We 

are losing our best judges, Senator, and we are not getting the 

highly qualified judges that we want. That is a fact. That is an economic fact. As I indicated in my statement, judicial resources is a 

tough sell. Even a rich country needs resources for schools, hospitals, health care, and roads. 

In poorer countries, it is the same. I tell parliamentarians and 

legislators in foreign countries, I say, ‘‘I know this is a tough sell. 

You go home and tell your constituents, oh, I raised the salaries 

of the judges.’’ They say, ‘‘What are you talking about? ’’ But a functioning, efficient, capable, highly qualified judiciary is part of the 

infrastructure. It is part of what makes the system, the rule of law, 

work. 

We had a judge, Senator—I can name any number of examples. 

I will use one of a judge who is deceased. You would probably remember, Mr. Chairman, Milton Pollack, a U.S. District Judge. 

Chairman LEAHY. I do, indeed. 

Justice KENNEDY. From the Southern District of New York, New 

York City. We had 100 cases in the wake of the fall of an investVerDate 0ct 09 2002 12:32 Apr 11, 2007 Jkt 034448 PO 00000 Frm 00027 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\34448.TXT SJUD1 PsN: CMORC
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ment firm called Drexel Burnham Lambert. There were 100 cases, 

each with well over $100 million of real damages. 

We looked at it and we thought that the Federal judiciary would 

be tied up for 10, 15 years with these cases. We went to Milton Pollack, a U.S. District judge, then 82 years old. We said, ‘‘Will you 

take these cases? ’’ Within 24 months, the assets of the company 

had greatly increased under his management. 

He settled 100 percent of the cases and he ordered the trustee to write out a check for over $600 million in fines to the U.S. Government, and for that you pay them $100,000 a year. I can’t get 

those judges to come any more. 

We had a judge who, by any account, would be one of the 10 

most knowledgeable people in the world on class actions, a U.S. 

District judge in Birmingham, Alabama. We had him in charge of 

our complex litigation and mass tort litigation. He left the bench 

because of compensation. His departure from the bench caused litigants in those cases to pay attorneys’ fees, I would think, in the 

tens of millions of dollars a year, and years of delay, and I cannot 

get those kind of judges in my system. 

Now, there has to be a mix. We can get talented, dedicated 

judges from the State system, but we need to draw more attorneys 

from the ranks of the practicing Bar and we cannot do it. 

Now, you mentioned the salary for life. Senior judges are required to take a one-third workload in order to keep their staff and 

their salary. Routinely they take far more than that. When I came 

to the bench, my predecessor told me, now I am going to have to 

take a one-third workload. He said, you know, it is bigger than my 

active workload when I came. 

And I could have said the same thing when I left. We cannot get 

judges in the Central District of California because of the workload. 

When I came, I think we had 500 cases a year per panel. It is now 

over 1,200. You need very capable, very dedicated people to do this. 

And it is not fair for you to trade upon the dedication and the 

commitment of these senior judges knowing they are going to stay. 

They are going to stay and they are going to serve you. But as a 

constitutional matter, you have a good-faith duty to pay them fairly. Linkage has prevented that, and congressional neglect has prevented that. 

Senator DURBIN. I would just say, Mr. Chairman, I don’t disagree 

with your observations. You know these men and women who are 

engaged in this better than I do, and the choices they are making, 

some personal, some professional, and the like. But the bottom line 

on public services, I don’t think any of this took this to get rich, 

or even to keep up with the rich. 

I think we have to understand the balance that has to be struck 

here that still gives a premium for public service in the compensation that we’re doing a public good, and I hope we can strike that 

balance. 

Justice KENNEDY. I think there’s no question but that the intangible rewards are important and satisfying. Although, as I indicated, we are losing judges to the nonprofit sector in teaching. We 

are losing some of our best judges to the law schools and we cannot 

get professors to come to the bench. 

Senator DURBIN. Thank you. 

25

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much. 

Senator Whitehouse? 

Senator WHITEHOUSE. Thank you, Mr. Chairman. 

Mr. Justice, how are you? 

Justice KENNEDY. Fine. Thank you, Senator. 

Senator WHITEHOUSE. Good. I served as a U.S. Attorney during 

the pre-Blakely, pre-Booker sentencing guidelines regime, when it 

was extremely strict and mandatory. I have not participated actively as a prosecutor, or in any other capacity, since those decisions. They have fairly dramatically changed the landscape. 

And setting aside the constitutional legal questions that Blakely

and Booker resolved, my question to you is, there is an ideal balance that cabins the judges’ sentencing discretion to a degree so 

that people have an idea what’s coming and there’s less room for 

caprice, and at the same time frees a judge to make sensible, fair, 

and independent sentencing decisions based on the facts in front of 

them, which are often not ones that a sentencing commission can 

pre-ordain or pre-figure with great precision. 

Are you comfortable that Blakely and Booker put us into that 

place or do you think that there is action required of the Congress 

in order to improve the balance in Federal sentencing? 

Justice KENNEDY. I am not comfortable with anything in the 

Federal correctional system and with our sentencing policy. 

Senator WHITEHOUSE. What should it be, ideally? 

Justice KENNEDY. Booker Fan-Fan, and Blakely were cases in 

which I dissented on the law, and I probably should not comment 

on how they should be accommodated. I think the Congress and 

your committee have to undergo a study of where we have been, 

where we are, and where we should go in the sentencing system. 

You’ve seen it as a U.S. Attorney. Mandatory minimums, I think, 

are wrong. When the sentencing guidelines first came out, I wasn’t 

too sure about them. I now think they are necessary. 

Senator WHITEHOUSE. You think sentencing guidelines are necessary? 

Justice KENNEDY. Yes. I think some guidelines, for consistency 

purposes. 

Senator WHITEHOUSE. Yes. 

Justice KENNEDY. It’s just wrong for this judge to be particularly 

harsh on drug dealers, and this judge on bank robbers. I used to 

go to the district judges’ dining room, and I concluded the only 

thing that’s worse than sentencing under the guidelines is sentencing without them. So, you have to have guidelines in order to 

have uniformity. 

Still our sentences are too long, our sentences are too severe, our 

sentences are too harsh. You have, in the Federal system, close to 

200,000 prisoners. In my State of California, we have an equal 

number, almost 200,000. Its costs $28,500 to $32,500 per year, per 

prisoner. 

You asked about U.S. Marshals. We’ve been talking about. They 

will take away a kid who’s 18 years old. Well, he was doing what 

he shouldn’t have done. He was growing marijuana in the country 

in his parents’ cabin and he had his father’s .22, and he was giving 

it to his friend. 

26

OK. He is a distributor, he has a weapon, and I think it is mandatory for 12 to 15 years. Mandatory. An 18-year-old does not know 

how long 15 years is. The pardon power is not being used. They 

pardon only a handful of people in the States and in the Federal 

system because they are afraid of re-offense, and so forth. So, there 

is no compassion in the system, there is no mercy in the system. 

When you are spending, let us say, again in the State of Cali- fornia, $30,000 a year on a prisoner and $4,500 a year per student 

in elementary school, there is something wrong. Now, that is apples and oranges because in the prisons you have full-time care. 

But to have, in the United States close to, two million people behind bars for lengthy terms, is just not working. 

We had some studies in which some of the prosecutors had some 

of the most innovative suggestions for pre-trial diversion, for rehabilitation programs, and so forth, and I just hope the Senate looks 

at this whole area. We are not going in the right direction. 

Senator WHITEHOUSE. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you, Senator. 

I see what you’re saying about mandatory minimum, Mr. Justice. 

As you know, my background was originally as a prosecutor. I am 

sure in the past I have voted for some of these mandatory minimums, usually because of something, as oftentimes when we Federalized crimes that should have been just left in the State. I agree 

with you. I think it is a mistake. I think it’s a mistake to set these. 

I think they end up being abused. I think that they end up being 

abused. I really feel that we have to look at that again. I think we 

have to look at all these mandatory minimums. I think we have to 

start over again. 

Frankly, I wish that we could find some way in the Federal 

Criminal Code, whether it’s through an outside group to first look 

at it and make recommendations, and then have us vote on it, I 

wish we would. There are too many crimes that may have sounded 

good, may have felt good by adding huge penalties, and unless the 

prosecutors show discretion, which they should, you get the case of 

the 18-year-old that you spoke of. We’ve got to go back and look 

at that. 

Too often, a legislature will say, we’ll stop crime. We’ll double the 

penalties. That doesn’t stop crime. Improving law enforcement 

does. Changing some of the social backgrounds does. So, I applaud 

you for saying that. 

Let me go into another area. We had stories about golfing junkets and lavish gifts received by members of Congress that have 

made lobbying and governmental reform ethics a major topic now. 

We’ve passed a significant ethics reform bill in the Senate. The 

matter is still up in the air, even as some Members of Congress 

have gone to jail. 

But also judicial ethics and conflicts are important. At least in 

our case, voters get a chance, in the House, every 2 years to toss 

somebody out if they think they’re not ethical, in the Senate, every 

6 years. 

There was a feature last year in the Washington Post about a 6-

day global warming seminar in Yellowstone Park funded by polluters. It was attended by two DC Circuit judges who later issued 

a Clean Air Act ruling very favorable to the polluters. Maybe they 

27

would, with or without it, but the impression it gave the public was 

a very serious one. 

We hear about members of the judiciary receiving gifts from parties that may appear before them or attending private seminars 

sponsored by corporations who have personal financial interests in 

litigating parties. It undermines the public’s trust. 

Now, last year the Judicial Conference took a significant step to 

improve transparency and public accountability and so on, with full 

disclosure of the financing for private seminars, mandating that. I 

think that’s a good step forward. 

Would you support efforts to go further and establish a fund 

where the courts pay for judicial attendance at these seminars? I 

kind of liken it to, our duties oftentimes take us overseas. You can 

have a special interest group pay for that overseas travel. You can 

say, now, this is important for legislative reasons and the government will pay for the travel. I like the latter far better than the 

former. 

But what do you think about that, for these seminars, having a 

fund within the judiciary? You determine how it is, whether it’s the 

chief judge of a circuit that determines it, or something like that? 

Justice KENNEDY. I do think we have to be very careful about 

perceptions of impropriety, especially the judiciary. It must be 

above any perceptions of impropriety. 

Seminars are part of the American way of life. That is what 

makes our society very efficient. You go into any hotel in any major 

city of the United States and you find doctors, nurses, social workers, prosecutors, and they are learning about the newest thing. And 

judges should not be left out of that. 

Chairman LEAHY. When I was a prosecutor I went to a lot of 

those seminars, but my office paid for it. 

Justice KENNEDY. I think it is certainly worth looking at. If the 

tradeoff is that judges can only go to those—I would have to think 

about it. I would have to look at it. 

Chairman LEAHY. Well, we’ll follow up on this. I’d like to discuss 

it further with you. I’m going to discuss it with the Chief, also. 

Now, judges and justices are allowed some honoraria today, are 

they not? 

Justice KENNEDY. No. 

Chairman LEAHY. No? 

Justice KENNEDY. Well, for teaching. 

Chairman LEAHY. All right. 

Justice KENNEDY. Although I can earn less now than in 1975, 

but that is something else again. 

Chairman LEAHY. I mean, is this for all judges or just justices? 

Justice KENNEDY. No. Justices can teach. We are set at—I will 

make it up—20 percent of some high government grade. I think it 

is about $22,000 a year to teach. 

Chairman LEAHY. By ‘‘teaching’’, you can have a group set up 

and say, we are the—

Justice KENNEDY. No, that is not my understanding. 

Chairman LEAHY. [Continuing]. Polluters R Us, and—

Justice KENNEDY. No. My own position is teaching at an accredited school. 

Chairman LEAHY. OK. What do you think about a ban on that? 

28

Justice KENNEDY. It has been a tradition that judges teach. I see 

no particular abuse of it. 

Chairman LEAHY. Provided it’s at an appropriate—

Justice KENNEDY. I taught night law school for over 25 years.

Chairman LEAHY. And obviously if the law school has been there 

for 25 years, it’s not set up for the purposes of teaching.

Let me just conclude with this. First off, I have found this fascinating, I really have. I have found this, aside from my personal 

respect for you, fascinating to hear the give-and-take. I wish it was 

not a day when most of us are on half a dozen meetings going on 

at the same time, and more could have been here.

I’m glad, when we have leaders, including justices, who appreciate America’s leading role in the world, which you spoke about. 

I had a great deal to do during this Nepal time, both in foreign aid 

and the so-called Leahy law involvement there.

But what you said about the Chief Justice of Nepal saying, keep 

on doing what you’re doing, I think that reflects the importance of 

America’s role. We played a key role in the creation of the universal declaration of human rights, our Bill of Rights, our independence judiciary.

You know yourself how many countries have basically followed 

that, especially when they become newly democratic. Justice Jackson’s role at the Nuremberg trial. I mean, this is something every 

law student should have to read about, every history major should 

have to read about, and our support for war crime tribunals for 

perpetrators of genocide, crimes against humanity in the form of 

Yugoslavia, Rwanda, Sierra Leone. These are things we can be 

proud of as Americans.

I was not so proud when our government declined just last week 

to join 57 other countries in signing a treaty already adopted by 

the U.N. General Assembly which prohibits governments from 

holding people in secret detention, something we have abhorred 

when other countries have done it. We have condemned those countries for detaining people in secret and covering up that detention.

But now we have chosen not to join much of the rest of the world 

in condemning this. It is an outrageous tactic after our President 

admitted last fall that our government has been doing that. And 

even more inexplicably, our government declined last week to join 

58 other countries who signed a non-binding ban or accord banning 

the use of child soldiers.

I can think of few things so tragic than those countries, whether 

in civil war or insurrection, or whatnot, who brought in child soldiers, who taught 8-year-olds, 9-year-olds, 10-year-olds how to kill, 

how to maim. I don’t know why our government would pass up the 

chance to condemn this.

America’s reputation is important, whether it is at Abu Ghraib, 

Guantanamo, or secret prisons, I think this hurt us. We do want 

to use this example. The rest of the world holds us to a high standard. They want us to live up to our own ideals.

The anecdote I told was actually true of those from the former 

Soviet Union saying to me, ‘‘And you do not fire the judge when 

the state loses? ’’ I mean, these are examples that we can be proud 

of. If we fall short of that standard, I think it is not only our repVerDate 0ct 09 2002 12:32 Apr 11, 2007 Jkt 034448 PO 00000 Frm 00032 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\34448.TXT SJUD1 PsN: CMORC
29

utation that suffers, I believe the cause of justice everywhere suffers.

So I would say that looking at the rest of the world is a good 

idea. There is no sin in doing research over the Internet. I would 

say that, even though some excoriated you for that. Most importantly, there is no sin—in fact, I call it a virtue—to recognize that 

there is a larger world around us and that we can set the example. 

If we fail to set the example, I think it hurts the rest of the world. 

If we set the example the right way, we’re better. We’re better as 

a people and the rest of the world is better.

Senator Specter?

Senator SPECTER. Thank you, Mr. Chairman.

Justice Kennedy, I concur with Senator Leahy that it is a fascinating process. It is a peephole into the way the court works and 

the way a justice thinks, and the way the rule of law is carried out. 

I want to ask you a question about the court’s declining docket and 

the intersection of a number of factors which have been raised by 

the commentators on why the court’s docket has declined. The statistics are fairly dramatic. One involves the cert pool where, as reported, eight of the justices, excluding only Justice Stevens, have 

their clerks work in a pool.

When Chief Justice Roberts was practicing law, it has been reported that he objected to that or raised a question about it because there may be less intense scrutiny on petitions for certiori.

For those watching on C–SPAN, the court has the discretion in 

almost all cases to take cases; if four justices concur, it is a case 

worthy of court review. So the issue is framed that if there were 

nine individual reviews of these applications for cert, it might be 

more thorough and more cases might be taken, and that may impact on the court’s docket.

I am going to give you the whole picture because the factors are 

interrelated. Then there are questions raised about the court concluding its term customarily at the end of June or beginning of 

July, issuing opinions on the pending cases, and then by statute resuming on the first Monday in October.

The question is raised as to whether that period where the court 

is not in session impacts on having fewer cases because the court 

does not sit for that 3-month period. I think Congress legislated to 

remove in a number of situations where the parties had a right of 

appeal, so called mandatory jurisdiction. You had made a comment 

earlier about not wanting to comment about whether the Congress 

had the authority to take away the jurisdiction. I believe we do not.

Chief Justice Rehnquist, in his confirmation hearings for Chief, 

said that after some dialog he expressed the opinion that Congress 

did not have the authority to take away the jurisdiction of the 

court on constitutional issues, implicating the First Amendment, 

and that might be carried beyond.

We have had some debates on the subject, but I do not see how 

the court can function as the interpreter of the Constitution if the 

Congress can take away the jurisdiction of the court. Congress has 

exercised some authority on jurisdiction on rights of appeal, socalled mandatory jurisdiction.

30

The court does not take all cases involving conflicts between the 

Circuits. On the surface, it would appear that if the Circuits are 

in conflict, that would be the kind of a case the Supreme Court 

ought to hear. So let me begin with the first question. Does the cert 

pool have an adverse impact on individual lives’ consideration of 

petitions for cert, that more might be granted if the justices looked 

at the cases individually?

Justice KENNEDY. We think just the opposite. The cert pool allows a clerk to spend a tremendous amount of time on that case. 

We have close to 9,000 petitions a year. Nine thousand a year Each 

one of those—

Senator SPECTER. Do you need more clerks? We can give you 

more clerks.

Justice KENNEDY. I do not particularly want more clerks. It is 

about right.

Senator SPECTER. Four is all right?

Justice KENNEDY. But this is their principal job most of the time. 

This is how they spend a tremendous amount of time. They look 

at each of these cases with a tremendous amount of care. If we did 

not do that, then everyone would look at it with less care, and I 

would not approve of that.

On the docket, we have asked ourselves the same question. When 

I first came, we had close to 160 cases a year. It was far too much 

because, as you know, all nine of us sit on every case. In recent 

years we were down to 80, which we thought was too light. Recently, we have granted a number of cases—so we’re climbing back.

I am surprised that we do not take cases involving inter-circuit 

conflicts. That is one of the principle reasons for taking the case. 

It may be that we did not think the conflict was real, or that it 

would go away, or there was some other case that would present 

it better. I am quite surprised at that.

The commentators have not really come up with the answer, and 

neither have we, but there are three or four answers. One, a lot 

of our work is generated by new Federal statutes. There have not 

been major Federal statutes recently like the Clean Air Act, or the 

Clean Water Act, or the Bankruptcy Reform Act. Those always generate a tremendous amount of litigation. We just have not had 

those new enactments.

Second, we understand boundaries of the administrative state. 

That is settled. There are difficult questions as to application, but 

the basic rules for when the agency has jurisdiction and authority 

and when it doesn’t are fairly well known, and so our intervention 

is not required.

I think, the emphasis on information technology, electronic technology, has made people more conscious of following precedents in 

other circuits and following our precedents. I think, really, there is 

more consistency and uniformity in the law.

I do not think my colleagues would say we are underworked. We 

are very proud, Senator, that we get our work done every year on 

schedule and on time. Our docket is 100 percent finished on July 

1, and we’re very proud of that. The way we can do that is by taking 2 months to read and recover and so forth before we come back 

31

to the cert pool in September, so I would not want to alter that dynamic.

Senator SPECTER. You say, ‘‘two months to read and recover’’?

Justice KENNEDY. Yes. And to do cert petitions, and so forth, and 

to be in contact with our offices. We’re just not hearing arguments.

Senator SPECTER. Do you do cert petitions over the summer?

Justice KENNEDY. Generally we don’t discuss them. If we see one 

that we are sure is going to be heard and is very important, we 

will notify each other and by mail we will grant cert. We like to 

be all in the room, and we usually do that the last week in September.

Senator SPECTER. Thank you very much, Justice Kennedy.

Justice KENNEDY. Thank you.

Senator SPECTER. I think, along with Senator Leahy, that it’s 

very useful. I agree with you, it can’t be too often. It has to be well 

modulated. But I think your appearance here today does a great 

deal to communicate to the public what the court does, what a Supreme Court justice is like, his reasoning, and how he applies the 

rule of law, which is the example.

I concur with my colleagues on my foreign travel. I’m asked 

again and again by jurists in other countries who have great respect for the exmaple which is set here. We’ll return another day 

to how to best inform the American people of the important work 

you do. Thank you, Justice Kennedy.

Justice KENNEDY. Thank you, Senator, for the interest that you 

always show in the courts, for your own expertise, and your own 

dedication to preserving the judiciary of the United States to be an 

independent branch that’s admired for its commitment and its 

dedication. Thank you very much. You have done a great deal to 

help us.

Chairman LEAHY. And Justice, we’ll include in the record further 

remarks by Senator Durbin, where he also refers to Judge Hornby 

in his capacity as Chair of the judicial branch’s Committee of the 

Judicial Conference, his references to what the Marshals have 

done.

[The prepared statement of Senator Durbin appears as a submission for the record.]

Chairman LEAHY. I will leave the record open for anybody else 

who has a statement.

But let me close again by thanking you, Justice Kennedy. At the 

risk of embarrassing you, I want you to know that during the last 

decade you’ve done a lot to advance the cause of human dignity 

and your decisions are going to stand as a landmark throughout 

time in that regard. Human expression is fundamentally and constitutionally a manifestation of the freedom upon which this country is founded, freedom of individuals, freedom, I might say, of our 

spirit as a Nation. You give life to the heart of liberty in recognizing human dignity.

We have spoken today of rhetorical attacks on the judiciary. Actually, Justice Kennedy, nobody has suffered more slanderous 

treatment than you have from some segments of the body politic, 

but no one has reacted with more grace and dignity than you have, 

and I applaud you for that.

32

Justice KENNEDY. Thank you.

Chairman LEAHY. We stand in recess.

[Whereupon, at 12:02 p.m. the hearing was adjourned.]

[Questions and answers and submissions for the record follow.]

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