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24–548 PDF 2005

S. HRG. 109–181

A REVIEW OF FEDERAL CONSENT DECREES

HEARING

BEFORE THE

SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT 

AND THE COURTS

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

JULY 19, 2005

Serial No. J–109–32

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

DAVID BROG, Staff Director 

MICHAEL O’NEILL, Chief Counsel 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS

JEFF SESSIONS, Alabama, Chairman 

ARLEN SPECTER, Pennsylvania 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

CHARLES E. SCHUMER, New York 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

WILLIAM SMITH, Majority Chief Counsel 

PREET BHARARA, Democratic Chief Counsel 

(III)

C O N T E N T S

STATEMENTS OF COMMITTEE MEMBERS

Page

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

statement .............................................................................................................. 75

Schumer, Hon. Charles E., a U.S. Senator from the State of New York ............ 16

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 1

WITNESSES 

Alexander, Hon. Lamar, a U.S. Senator from the State of Tennessee ................ 2

Berman, Hon. Howard, a U.S. Representative in Congress from the State 

of California .......................................................................................................... 6

Greve, Michael S., John G. Searle Resident Scholar, Director, AEI Federalism 

Project, and Co-Director, AEI Liability Project, American Enterprise Institute, Washington, D.C. ........................................................................................ 19

Jones, Nathaniel R., Judge (Ret.) and Partner, Blank Rome LLP, Cincinnati, 

Ohio ....................................................................................................................... 12

Jost, Timothy Stoltzfus, Robert L. Willett Family Professor of Law, Washington and Lee University School of Law, Lexington, Virginia ....................... 17

King, Troy, Attorney General, State of Alabama, Montgomery, Alabama ......... 10

Sandler, Ross, Professor of Law, and Director, Center for New York City 

Law, New York Law School, New York, New York .......................................... 13

Schiffer, Lois J., former Assistant Attorney General, Environment and Natural Resources Division, Department of Justice, Washington, D.C. ................ 21

SUBMISSIONS FOR THE RECORD 

Greve, Michael S., John G. Searle Resident Scholar, Director, AEI Federalism 

Project, and Co-Director, AEI Liability Project, American Enterprise Institute, Washington, D.C., prepared statement ..................................................... 36

Jones, Nathaniel R., Judge (Ret.) and Partner, Blank Rome LLP, Cincinnati, 

Ohio, prepared statement .................................................................................... 47

Jost, Timothy Stoltzfus, Robert L. Willett Family Professor of Law, Washington and Lee University School of Law, Lexington, Virginia, prepared 

statement .............................................................................................................. 60

King, Troy, Attorney General, State of Alabama, Montgomery, Alabama, prepared statement ................................................................................................... 67

Lazarus, Simon, Public Policy Counsel, National Senior Citizens Law Center, 

Washington, D.C., prepared statement .............................................................. 72

Legal Times, April 25, 2005, article ....................................................................... 78

National Center for Youth Law, Sara Woodward for Curtis L. Child, Senior 

Attorney, Sacramento, California, letter ............................................................ 80

Sandler, Ross, Professor of Law, and Director, Center for New York City 

Law, New York Law School, and David Schoenbrod, Professor of Law, 

New York Law School, New York, New York, statement and attachment ..... 85

Schiffer, Lois J., former Assistant Attorney General, Environment and Natural Resources Division, Department of Justice, Washington, D.C., prepared 

statement .............................................................................................................. 97

Snoble, Roger, Chief Executive Officer, Los Angeles County, Metropolitan 

Transportation Authority, Los Angeles, California, statement ........................ 109

(1)

A REVIEW OF FEDERAL CONSENT DECREES 

TUESDAY, JULY 19, 2005

UNITED STATES SENATE, SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE

COURTS, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:32 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Jeff Sessions, Chairman of the Subcommittee, presiding. 

Present: Senators Sessions and Schumer. 

OPENING STATEMENT OF HON. JEFF SESSIONS, A U.S. 

SENATOR FROM THE STATE OF ALABAMA 

Chairman SESSIONS. The hearing will come to order. 

Today’s hearing is an important hearing that deals with a matter 

that people who have been a Governor, like Governor Alexander, 

or Attorney General, as I have, know something about and understand the importance of. It is the question of a consent decree that 

may have been entered into at one point in time between an attorney for a governmental institution—sometimes it is the Attorney 

General; sometimes it may be the attorney for the school board or 

the county or the city—and to what extent for all time does that 

consent decree bind that Government entity. It is a matter of legitimate concern. 

Private companies settle lawsuits, and they enter into agreements. Governmental entities can settle lawsuits also. But sometimes it implicates constitutional questions to an important degree. 

We have an excellent panel today, a group of people who have 

thought about these issues and who have given serious consideration to them. It is a question of How do we best preserve the proper balance between executive, legislative, and judicial branches? 

How do we preserve the power of the American people to control 

the policies of their Government? And to what extent should an Attorney General or Governor or school board superintendent who 15 

years ago, perhaps now in the grave, to what extent can they control the school board policy of today and how do you deal with that? 

So those are questions that are relevant. We will hear some good 

testimony. We will have panelists on both sides, and I look forward 

to hearing the discussion today. 

I will not worry about particularly doing our introductions. There 

is all the information I got, but I do not need it. Senator Alexander, 

we are pleased that you are here today. This is an issue that I 

know you care about and have gathered quite a few cosponsors on 

legislation that would deal with some of what you perceive as the 

2

excesses here. You have served as the Governor of Tennessee. You 

are a lawyer. I know you clerked for Judge John Minor Wisdom of 

the Fifth Circuit Court of Appeals. And you understand the issues 

and have written and read deeply about it. 

Congressman Berman, we are delighted to have you with us. You 

serve on the Judiciary Subcommittee on Courts, as this Subcommittee is the Court Subcommittee for the Senate, and we are 

delighted to have you with us and to hear your thoughts on the 

subject. 

Senator Alexander, would you set forth your thoughts on this 

subject? Then we will go to Representative Berman, who has a different view. 

STATEMENT OF HON. LAMAR ALEXANDER, A U.S. SENATOR 

FROM THE STATE OF TENNESSEE 

Senator ALEXANDER. Thank you very much, Mr. Chairman, and, 

Representative Berman, it is good to see you again. I thank you for 

being here and contributing to this. 

I want to thank you, Senator Sessions, for chairing a hearing on 

this important subject, the Federal Consent Decree Fairness Act. 

If I could sum up what we are about today, it is this: It is passing 

legislation, this legislation, which I believe would help leave policy 

decisions where they ought to be—in the hands of officials elected 

through the democratic process—and leave the protection of individual rights where that ought to be—in the hands of the courts. 

I think that is what the discussion is about today, and I believe 

this bill helps do that. 

I might also say that this is not the first hearing on this legislation. The House has had a hearing on the legislation and I am sure 

gathered useful information. And I participated, and others did, in 

a hearing at the American Enterprise Institute earlier this year 

where a number of people of various points of view from around 

town came, offered their suggestions, and the bill has gradually 

been improved as we tried to take into account those suggestions. 

So the hearings have a very useful role. 

This legislation was introduced in March of this year. I was cosponsor, along with Senator Mark Pryor of Arkansas. The legislation now has 24 cosponsors, both Democrats and Republicans, in 

the United States Senate. A companion bill has been introduced by 

Democratic Congressman Jim Cooper and Republican Whip Roy 

Blunt in the House of Representatives, and it has also received significant bipartisan support. 

The House bill has received a hearing, as I mentioned, before the 

Subcommittee on Courts, the Internet, and Intellectual Property of 

the House Judiciary Committee. 

The bill addresses a problem that can best be summed up by the 

phrase ‘‘Democracy by Federal court decree.’’ This is a phrase that 

was coined by Professor Ross Sandler and David Schoenbrod in 

their book ‘‘Democracy by Decree: What Happens When Courts 

Run Government.’’ I guess lots of times people wonder where does 

the idea for a piece of legislation come from. Does it come from a 

lobbyist? Does it come from the brain of a House Member or a Senator? In this case, it came from the brains of these two professors 

and from their background and experience. Both of them began as 

3

lawyers with the Natural Resources Defense Fund. In fact, they 

were the lawyers who were bringing the kinds of cases that often 

negotiate Federal court consent decrees. And they produced a remarkably balanced book, and the contents of the book were endorsed by a variety of individuals, including former Senator Bill 

Bradley; Ed Koch, the former Mayor of New York City; John Sexton, the president of New York University; Chris DeMuth, president of the American Enterprise Institute. 

They have contributed substantially to the development of this 

bill in this book. They refer to what I would call an alarming trend 

of taking public policy decisions out of the control of elected officials—the Governor, the legislature, the mayor, the city council—

and putting them indefinitely in the hands of a small group of 

plaintiffs’ attorneys and an unelected Federal judiciary. 

The Federal Consent Decree Fairness Act addresses these problems by establishing new principles and procedures for creating, 

managing, and eventually ending Federal court supervision of 

State and local policy decisions. The bill levels the playing field for 

State and local governments without undermining the role of the 

Federal courts. And as I mentioned at the outset, passing this bill 

would leave policy decisions where they ought to be: in the hands 

of officials elected through the democratic process. It would also 

leave the protection of individual rights where it ought to be: in the 

hands of the courts. 

The bill takes a three-pronged approach. 

One, it sets out a series of findings based on dicta in the 2004 

Supreme Court decision Frew v. Hawkins that suggests that consent decrees should be narrow in scope and return policy decision 

to State and local governments as soon as possible. 

Two, the legislation places term limits on consent decrees. The 

bill does not automatically end consent decrees, but it does allow 

State and local governments, after 4 years or the end of the term 

of the official who authorized the consent order, to go back into 

court and ask that a decree be reviewed. 

Three, when the decree is reviewed by the court, the burden of 

proof is now shifted to the plaintiffs to demonstrate that there is 

an ongoing violation of Federal law that requires continued court 

supervision to correct. 

So, you see, Mr. Chairman, from beginning to end the court still 

has supervision over the matter. This just makes it easier for the 

newly elected Governor or newly elected mayor to get into the 

court, and then it is up to the person who feels aggrieved to persuade the court in the first place or to carry the burden of proof 

that this order still needs to be in effect. 

I believe this takes a balanced approach to the problem of outdated consent decrees. It is based on scholarship, as I mentioned. 

It reflects the thinking of the Supreme Court. And it creates a fair 

approach that puts the plaintiffs and the State and local governments on a level playing field. 

Mr. Chairman, consent decrees are a useful tool. However, some 

consent decrees have lingered far too long and have become outdated. Yet they remain in force because the burden on State and 

local governments to modify or vacate them is too great. 

4

For example—and these are examples that Mr. Sandler may in 

his testimony refer to, so I will be brief about it. But, for example, 

in New York there is a 1974 consent decree that mandated the provision of any form of bilingual education for more than three decades. The result is a program that forces children into certain types 

of bilingual classes— 

Chairman SESSIONS. Senator Alexander, would you repeat that? 

Bilingual education for how long? 

Senator ALEXANDER. The consent decree was entered into in 

1974 in New York City, and it established a form of bilingual education for children in New York City at that time for more than 

three decades. I believe what it said is that there needed to be a 

teacher in a particular language for any group of children of more 

than 10 who speak a particular language. 

Now, today, parents in New York City would like to have their 

children in a different kind of class called English as a Second Language where they learn English more rapidly. But the fact is that 

because of the outdated consent decree, today’s parents and today’s 

school officials cannot move to that kind of education. 

In Los Angeles, a 1996 consent decree has forced the Metropolitan Transit Authority to spend 47 percent of its budget on city 

buses only, leaving just over half the budget to cover all the other 

transportation needs of the Nation’s second largest city. Now, 

maybe that was the right thing to do in 1996, but the consent decree mandated the purchase of 582 buses in the first 6 years it was 

in effect, the net result of which was only a 3-percent increase in 

ridership. In 2004, in spite of this track record, the court ordered 

the MTA to purchase 145 more buses, even though elected officials 

would like to spend their transportation money in a different, more 

effective way. 

And, finally, in Tennessee, my home State, the Democratic Governor, Governor Bredesen, found his attempts to reform our State’s 

Medicaid program, called TennCare, blocked by three outdated 

Federal court consent decrees. They went back so far that they included consent decrees that were entered into when I was the Governor of Tennessee. The limits imposed by these decrees forced the 

Governor to scale back benefits for 300,000 beneficiaries in order 

to afford both TennCare and the public education program. And he 

was able to accomplish this only after a lengthy and expensive Federal court battle. In other words, the Governor was elected to try 

to reform Medicaid in Tennessee. He could persuade his administration. He could persuade the legislature. He persuaded the Federal Government. But, still, he then had three Federal courts to 

persuade of what he expected to do. And every month that went 

by, while he was waiting for the court to make a decision, it cost 

millions and millions of dollars, enough money to give Tennessee 

teachers a pretty big pay increase. 

Now, this latest example emphasizes why I believe it is important for Congress to move this legislation quickly alongside the 

medication legislation that we will consider this fall. If I may, I will 

finish up with about a couple more pages, if I have time for that. 

Chairman SESSIONS. Please. We have a goal of 10 minutes, but 

you are free to go over. 

5

Senator ALEXANDER. I am a member of the Budget Committee, 

and I have listened very carefully to this year about how States are 

unable to control the growth of Medicaid spending. As we know, 

the Federal Government spends about 60 percent of Medicaid costs, 

and the States come up with the other 40 percent under Federal 

rules. 

For example, the State of Tennessee, when I left the Governor’s 

office in 1987, we were spending 51 cents out of every State tax 

dollar on education and 15 cents on health care. Today, Tennessee 

spends 40 cents on education and 31 cents on health care, with 

Tennessee’s Medicaid program accounting for most of that increase. 

Meanwhile, State college tuitions go up, teachers’ salaries stay flat, 

art and music programs are shut down, and pre-K and after-school 

programs are never started. It is the same story in State after 

State. 

In other words, who is going to decide whether to increase Medicaid spending or increase teachers’ salaries or start a pre-K program? In our State, we believe we elect Governors and legislators 

to do that, not Federal judges. 

The budget resolution we are considering in Congress calls for 

the Federal Government to slow the growth of Medicaid spending 

by $10 billion over the next 5 years out of approximately $1.12 trillion total. I support that. But I argued on the floor that to reduce 

the Federal deficit, we must curb Medicaid spending, but we cannot simply cut back on Federal Medicaid spending without giving 

States the tools they need to also reduce the growth of State Medicaid spending. 

States are caught in the middle when Congress tells them to 

curb spending and then the Federal court, because of some outdated consent decree, tells the State find your savings somewhere 

else. 

So it is my belief that the Federal Consent Decree Fairness Act 

is an essential piece of the Medicaid reform package that we will 

consider this fall. And if we are going to ask States to help bring 

health care costs under some control, then we must allow them the 

tools they need to make these decisions. We should put those decisions and other decisions on issues that have traditionally rested 

with elected officials in the hands of elected officials who are held 

accountable for those choices. 

I appreciate the opportunity to testify here today. I look forward 

to working with members of the Judiciary Committee to advance 

this legislation. I ask to include in the record with these remarks 

a copy of a Legal Times article that I wrote in April of this year 

describing the legislation. 

Thank you, Mr. Chairman. 

Chairman SESSIONS. Thank you, Senator Alexander, for your 

thoughtfulness and your hard work on this project. 

Congressman Berman, we are delighted to have you on this side, 

and we would be delighted to hear from you at this time.

6

STATEMENT OF HON. HOWARD BERMAN, A REPRESENTATIVE 

IN CONGRESS FROM THE STATE OF CALIFORNIA 

Representative BERMAN. Well, thank you very much, Mr. Chairman. I thank you very much for inviting me and allowing me to 

testify. I have tremendous respect and affection for Senator Alexander, whom I have gotten to know in other circumstances, and so 

I am sorry to be here opposing a bill that he obviously is both deeply committed to and has thought a great deal about. 

I understand the motivations behind the bill. There are a number of consent decrees which govern various bodies in and around 

my own district, at least one of which I find in certain respects 

problematic. But the overarching problem with this bill essentially 

is that it allows the city or State to move to vacate or modify, and 

by the city or State making that motion to go forward, the burden 

then is with the plaintiff in that original consent decree to reprove 

his case simply because the defendant has asked for a review of the 

consent decree. 

You are going to hear from other witnesses a lot of the specifics, 

but I want to just touch on a few of them, if I might, and what 

I think the implications are. 

Under the proposed law, consent decrees may be reviewed every 

4 years or after any change of Government. So, for example, if after 

years of negotiation a decree was signed in the midst of a mayor’s 

term or, more likely, near the end of his term, a new mayor could 

immediately review and dismantle the decree. And I mean here 

dismantle the decree whether the problem has been addressed or 

not. 

To further complicate matters, it is unclear what constitutes 

change of Government. How many of the five-member Board of Supervisors would have to change before it constitutes a change of 

Government? Would one supervisor suffice? Would two or three be 

required? Would they have to be replaced or would their simple reelection trigger this provision? 

With the ability to subject a consent decree to review at almost 

any point, given this formulation, I cannot imagine—and this I 

think is one of the biggest consequences should this bill become 

law—why any plaintiff, whether the Federal Government or a private party, will ever settle a case? Why settle a long-term problem 

by consent decree if the settlement is essentially void in 4 years or, 

more likely, much sooner than that? The whole consideration to 

produce that kind of consent decree is gone in the minds of the 

plaintiff and his or her attorney because of the fact that he does 

not have really a final order for a long period of time. 

Consider the impact of this bill where one State sues another 

under original Supreme Court jurisdiction. These cases can take 

many years to litigate, and when they settle, the consent decrees 

can last many years. California and Arizona, a big fight about Colorado River water. The consent decrees, they operate under a water 

rights agreement stemming from a 1952 lawsuit, a 1964 consent 

decree, several supplemental decrees, a 1989 motion to reopen the 

decrees to allot additional water rights for Indian reservations, and 

a 2000 Supreme Court ruling on whether that motion was precluded. 

7

Under this regime, that whole case would have to be relitigated 

every 4 years or whenever a new Governor wanted to. In the context of either California or Arizona, depending on who is moving, 

these are serious issues that we thought had been settled that are 

now opened up for relitigation. There are several procedural issues, 

each having profound impact on the viability of consent decrees. 

Consider the requirement that the judge has to rule within 90 

days or the decree is automatically terminated. This time frame is 

unrealistic. Many decrees will be dissolved simply as a result of the 

passage of that time. Because the bill shifts the burden to the 

plaintiff to re-establish the burden of proof, there will always be 

need for a full retrial on the decree’s merits. Courts are often simply unable to work that fast given their existing caseload. The 

court can still decide the motion if it fails to rule within 90 days, 

but the decree is vacated during that time. As discovery for many 

of these cases is time-consuming, it could be years before the consent decree is reinstated. 

The bill proposes a compensation cap of no more than $75 an 

hour. That is about one-fifth or one-eighth of what Special Masters 

normally get in their law practice. It is unlikely we are going to 

be able to get a truly skilled, in-demand person to give up the time 

necessary to supervise a consent decree with that kind of limitation. 

Finally, the proposed legislation recognizes that there are certain 

things that are so sensitive that they should not be subject to the 

bill—in this case, consent decrees involving school desegregation on 

the basis of race, color, or national origin. But I think as the Committee thinks about it, they are going to find some other areas 

where it is also very sensitive, employment discrimination cases, 

public accommodations cases, under the Civil Rights Act of 1964, 

discrimination in terms of grant monies going, Voting Rights Act 

cases. There are critical decisions in these areas that will be vacated by virtue of this bill as it is presently drafted. 

I do not want you to get me wrong. I am very sympathetic to the 

pressures faced by local governments when dealing with consent 

decrees. I mentioned this case involving the Metropolitan Transit 

Authority in Los Angeles that Senator Alexander spoke to. Take, 

for example, the New York City—not the case about bilingual. I am 

not familiar with that, but on special education. There a consent 

decree requires a huge amount of money be spent on special education, pulling money from other priorities, and substantial 

amounts of money. Why? Because in 1975 Congress created a Federal right to special education in the Education for All Handicapped Children Act. What we did not do was appropriate the 

funds to local districts to meet the obligation we imposed on them 

through law. 

The issue here is not the consent decree. It is that we should either fund the mandate or change the nature of the Federal law. 

These lawsuits that result in these consent decrees do not come out 

of the good ideas and utopian ideas of a plaintiff’s attorney or a 

plaintiff or the judge’s sense of what is right to do. They come 

based on the obligations of Federal law. And if there are consent 

decrees that are imposing too heavy a burden, we are the people 

who can revisit that issue through taking a look at the Federal law 

8

or our failure to appropriate and meet mandates we have imposed 

on State and local governments. I do not think we should avoid accountability for those decisions by instead providing this method 

for the consent decrees. 

And coming to a conclusion here, this is all done in the context 

of a 2004 decision in Frew v. Hawkins, and the authors and proponents of the bill say it is consistent with that decision. But I read 

that decision totally different. All nine Justices were on the same 

side—Scalia, Thomas, Rehnquist—all nine of them. They all upheld 

the concept of consent decrees, and they set standards that district 

courts should use when reviewing them. They did not say to get rid 

of consent decrees. They did not say to require the plaintiffs to reprove their case. What they suggested was a prescription to fix the 

problem. They wrote, ‘‘If the State establishes reason to modify the 

decree, the court should make necessary changes. Where it has not 

done so, however’’—that is, where the State has not established a 

reason to modify—‘‘the decree should be enforced according to its 

terms.’’ And in the context of that decision, all nine Justices talked 

about giving a great deal of deference to the local governments and 

the State governments in making their decisions. 

So I disagree in the first instance that State and local officials’ 

hands are truly tied at the present time. They can go in to modify. 

Even if they were, the answer would not be the effective elimination of all consent decrees. Congress should either fund the mandate or change the underlying Federal law. Consent decrees I think 

have tended to become a bit of a scapegoat, and I think the underlying problems will continue to exist and that this bill may create 

more problems than it solves. 

Thank you. 

Chairman SESSIONS. Well, thank you. Those were very, very interesting and important comments both of you have made. 

I think about a situation that was most stark to me when I was 

Attorney General—actually, before I became Attorney General. The 

Alabama Supreme Court had one African-American out of nine on 

it. Statistically speaking, maybe two would have been appropriate 

with the population. But two African-Americans had run for the 

Supreme Court and won, and the only two that had ever run in recent years, and both had won. And a lawsuit was filed to challenge 

that. Normally they make the challenges that run from districts. 

But that would not have helped apparently the plaintiffs, who were 

also working with the trial lawyers, who had a majority on the Supreme Court. 

And so a proposal was entered into with the Attorney General, 

my predecessor, and the proposal was, an offer as a consent decree, 

that the plaintiffs would nominate two additional judges, the court 

would go from nine to eleven judges. We would add two new 

judges. They would not be elected by the people but would be appointed by the committee, and presumably the State legislature 

would fund them, and nobody was particularly concerned that it 

was in total violation of Alabama’s constitutional creation of the judicial branch of government. Shortly before he left office, my predecessor signed that agreement, and it was approved by the Federal 

judge.

9

When I got elected Attorney General, I appealed and the court 

rejected it and threw it out, said there was not a sufficient foundation for that. 

Senator Alexander, I am sympathetic with the idea that a departing office holder, for whatever reasons—good intentions or 

maybe not—can enter into a decree that could impact very important governmental relations in a way that may be unforeseeable 

even 5, 10 years down the road. So I appreciate that. 

Let me ask both of you, if you would—this is an important 

issue—would you join me at the panel and stay and participate in 

the questioning? Congressman Berman, we are delighted to have 

you, if you have got the time. And, Senator Alexander, we would 

be delighted to have you join me as we discuss this issue more in 

depth. 

Representative BERMAN. I just have to leave about 3:45. 

Chairman SESSIONS. That will be fine. You can stay as long as 

you like. You are interested in this issue, and I think it would help 

us as we discuss it. 

Chairman SESSIONS. We have a panel now, our second panel. We 

have both governmental officials who have firsthand knowledge of 

how consent decrees can bind future Government officials and expert witnesses. 

Our first witness is Alabama Attorney General Troy King, who 

is doing a terrific job in the State. He served as Alabama’s Attorney General since 2004. It was a position I held for 2 years before 

being elected to the Senate, and he replaced former Attorney General William Pryor, who is now a U.S. circuit judge. 

Our second witness is Judge Nathaniel R. Jones. Judge Jones 

served on the Sixth Circuit Court of Appeals and is currently a 

partner with the law firm of Blank Rome LLP in Cincinnati, Ohio. 

Judge Jones has dealt with consent decrees throughout his career 

as a Federal appellate judge, as a litigator on behalf of the NAACP, 

and as assistant general counsel to the National Advisory Commission on Civil Disorders. 

Our third witness is Professor Ross Sandler. I believe you have 

been referred to by Senator Alexander. Professor Sandler is a professor at New York University School of Law and the director of 

its Center for New York City Law. He was one of the authors of 

‘‘Democracy by Decree: What Happens When Courts Run Government,’’ the book upon which the Federal Consent Decree Fairness 

Act is based. 

The fourth witness is Tim Jost. Professor Jost is the Robert L. 

Willett Family Professor of Law at Washington and Lee University. 

Professor Jost has published numerous scholarly books, articles, 

and book chapters on health law and policy and comparative health 

law and policy. He also published a Law Review article on Federal 

consent decrees. We are glad you are with us. 

Our fifth witness is Dr. Michael Greve. Dr. Greve is the John G. 

Searle Scholar at the American Enterprise Institute for Public Policy Research and the director of AEI’s Federalism Project. He has 

written extensively on the problems underlying Federal consent decrees. Dr. Greve also served as the director of a public interest law 

firm. 

10

Our final witness is Ms. Lois Schiffer. Ms. Schiffer is currently 

an attorney in private practice with Baach, Robinson & Lewis. She 

is also a former Assistant Attorney General with the U.S. Department of Justice’s Environment and Natural Resources Division. 

During her time as an Assistant Attorney General, Ms. Schiffer 

personally approved hundreds of environmental consent decrees. 

So I will ask the panel to limit your opening remarks to 5 minutes so that we can have time for a full round of questions. Without objection, your full testimony will be placed in the record. 

All right. Attorney General King, we are delighted that you are 

here. I know the State of Alabama has a number of decrees in 

place. I do remember thinking when I was elected Attorney General in 1994 that we needed to end the Reynolds case. And I got 

our team together, and I said, ‘‘This thing needs to be ended. The 

lawyer fees are killing us. Why can’t we get it settled?’’ I understand it is not settled yet. It was already old when I started to try 

to fix it. 

But, at any rate, we would be delighted to hear your remarks in 

general on this entire situation and how you view it. Attorney General Troy King. 

STATEMENT OF TROY KING, ATTORNEY GENERAL, STATE OF 

ALABAMA, MONTGOMERY, ALABAMA 

Mr. KING. Thank you, Mr. Chairman. My name is Troy King. I 

am the State Attorney General for Alabama. Thank you for inviting 

me to address this Subcommittee today and to share my State’s experiences with consent decrees and my support of S. 489 as a vehicle to address some of the abuses that accompany many consent decrees. 

The Federal Consent Decree Fairness Act will provide a much 

needed change in the law regarding consent decrees. The Act will 

make it easier for State governments to end oppressive consent decrees by taking the policymaking discretion away from Federal 

judges and returning it to those who have been elected or appointed to make those decisions. 

I will share with you today three of the most egregious examples 

that have the greatest impact on our home State of Alabama. 

First I will talk about Reynolds v. McInnes, which is the case you 

just mentioned. It is a case where the costs continue to soar as the 

plaintiffs’ lawyers continue to frustrate their own client’s objectives 

in this case, and it is due to the entry by the State of Alabama into 

a consent decree. 

Second is the case of RC v. Walley with impacts Alabama’s delivery of child welfare systems and extra consent decree activities, the 

activities the State is being required to engage in that are not required by the terms of the consent decree and, in fact, are counter 

to them. 

And third, Wyatt v. Stickney, which involves the State’s Department of Mental Health and Mental Retardation and the changing 

standards that continue to frustrate the State’s ability to comply 

with consent decrees. 

An example of the first oppressive, out-of-control consent decree 

in my State stems from Reynolds v. McInnes. In Reynolds, AfricanAmerican employees and former employees of the Alabama DepartVerDate 0ct 09 2002 14:05 Nov 17, 2005 Jkt 024548 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\24548.TXT SJUD4 PsN: CMORC
11

ment of Transportation commenced a racial discrimination class action lawsuit against the Department of Transportation. Governor 

Jim Folsom, Jr., entered into a consent decree in March of 1994 

that was originally set to expire in December of 2000. To date, over 

four dozen appeals and petitions have been filed and the consent 

decree remains in effect. The Eleventh Circuit Court of Appeals recently addressed the obscene amount of public funds that have 

been spent on the Reynolds consent decree, saying: ‘‘[T]his unwieldy litigation has been afflicting the judicial system and draining huge amounts of public funds from the State of Alabama for 

much too long. The amounts are staggering. Fifty million dollars in 

public funds has been spent on attorney’s fees alone in this 

case..bringing the total litigation costs to the State of Alabama to 

more than $112 million, and that cost is growing at a rate of 

around $500,000 each and every month.’’ 

With these funds, every mile of interstate in Alabama could have 

been resurfaced— 

Chairman SESSIONS. Just as a point, since the plaintiffs are prevailing presumably by obtaining orders, the State has to pay both 

their own lawyers and the plaintiff lawyers also? 

Mr. KING. I was coming to that, Mr. Chairman. 

Chairman SESSIONS. All right. 

Mr. KING. In fact, under this consent decree we pay whether they 

prevail or not. We pay for every minute they spend on this case, 

whether it is a worthwhile endeavor, whether they ultimately prevail or not. It is an example of the oppressiveness of consent decrees where people do things they would not ordinarily have a Federal right to obtain, but they agree to do it by striking a bargain 

that is to the detriment of the people of my State. 

The lead plaintiff in this case, you may be interested to know, 

Johnny Reynolds, died shortly after receiving long-awaited settlement proceeds. His attorneys, on the other hand, have long ago 

grown rich, and the people of Alabama continue to grow more and 

more disillusioned with the system that could allow this to occur. 

The court addressed the long-term effect of this agreement saying: 

‘‘The promise of fees for time spent without regard to the outcome 

of a motion or appeal in a case that apparently has endless potential for dispute may be the kerosene that has fueled the litigation 

fires, which have raged out of control in this case.’’ 

You see, when you award attorney fees for every minute spent 

by the plaintiffs in a case, regardless of whether their claims are 

frivolous, regardless of whether they have an entitlement to them, 

it is an example of a contract provision that successive administrations have been helpless to alter, even as its unsoundness becomes 

more and more evident even to the most objective and detached observer. The Federal Consent Decree Fairness Act will provide a vehicle for modifying such provisions, provisions that are later found 

to be unworkable or unsound after they have been approved. 

Another example of the difficulties that exist in modifying consent decree provisions can be found in the Reynolds case again. The 

Reynolds consent decree contained a no-overlap provision that governed the measurement of candidates’ job qualifications. 

Despite a good-faith effort by both parties to comply with the 

provisions of this part of the consent decree, the defendant were 

12

forced to pay millions in finds as the plaintiffs blocked, litigated, 

and otherwise frustrated the achievement of compliance. After the 

defendants had paid over $4.5 million in sanctions for noncompliance, the court agreed that these provisions were unworkable and 

removed them from the consent decree, yet there has been no refund of these monies to the State for the monies they were required 

to pay to achieve a result that was completely unworkable in the 

beginning. 

I will stop there. I see the red lights are on, but, unfortunately, 

I could go on and on and on. 

[The prepared statement of Mr. King appears as a submission for 

the record.] 

Chairman SESSIONS. Thank you. 

Judge Jones, it is a delight to have you, and we would be pleased 

to hear your comments at this time. 

STATEMENT OF NATHANIEL R. JONES, JUDGE (RET.), AND 

PARTNER, BLANK ROME LLP, CINCINNATI, OHIO 

Judge JONES. Thank you, Mr. Chairman, and members of the 

Committee. It is my pleasure to offer this testimony on this important legislation. 

My name is Nathaniel R. Jones, and I, as has been indicated, 

served for 22 years as a member of the Sixth Circuit Court of Appeals, and prior to that time, I served as general counsel of the 

NAACP for some 10 years, and for the preceding years I served in 

various positions, including assistant general counsel to the National Advisory Commission on Civil Disorders. That was a commission appointed by President Johnson to study the cause of civil 

disorders, and in that report, which I commend to your reading, 

along with the other reading that has been proposed to you, you 

would have an appreciation, Mr. Chairman, of the reasons why 

remedies that were formulated by Congress came into being and 

remedies that were formulated by State legislature came into being 

to correct the causes of frustration and the anger and the disruption that was costing our taxpayers millions and millions of dollars 

in the period of the 1960’s and prior to that. 

The legislation that has been proposed, in my judgment, is overdrawn, and it will have the effect of applying a wrecking ball to a 

judicial process that has been invaluable in resolving very knotty 

and contentious legal problems and social problems that we have 

in this country. 

There is no problem that needs fixing in the way that is formulated by this legislation. The unanimous 2004 Supreme Court decision in Frew v. Hawkins directed district courts to do, in effect, 

what they have been doing, and that is, pay close attention and 

give deference to the local officials who were bringing claims of repressive conduct and the effects that they were feeling from these 

consent decrees. The various claims that were being filed were already being carefully monitored and scrutinized by Federal district 

courts. Rule 23 requires a procedure for dealing with claims that 

were resolved by agreement, and before a Federal court can 

agree—before it will enfold and adopt into a consent decree an 

agreement, the court has to hold in the first instance a preliminary 

hearing. It must determine before it issues a preliminary approval 

13

whether or not the agreement is fair, whether it is adequate, and 

whether it is reasonable. And then following in that process, all 

members of the class are notified, and they are invited to attend 

and participate in a fairness hearing. And at that time, they may 

set forth their views with regard to the adequacy of the agreement. 

Upon the approval of that agreement, the court then will include 

into a court decree and it will be then thereafter enforced. Now, if 

there are differences with regard to it over time, if there are problems in connection with it, any party, including Governors, mayors, 

or any other State officials, may apply to the court for modification. 

And this happens all the time. I can cite cases. I sat on 25 cases 

alone in the Sixth Circuit in which there were challenges to consent decrees. And what we looked at very carefully was whether or 

not those agreements were fair, were they adequate, and were they 

in need of any kind of reform or modification. And we took a very 

careful look to see whether the district courts had accorded due 

process to the officials who were protesting and claiming that they 

were not being treated fairly. 

I must say very candidly that there were cases in which I wrote 

the opinion to reverse and remand the case to the district court 

with direction to hold a hearing and ensure that all of the T’s were 

crossed and all the I’s were dotted. So there is a process in place, 

and we do not need to have a cannon to go after a gnat. 

There has been a lot of testimony here about the Reynolds case. 

I am not familiar with the case to the extent that the Attorney 

General is, but I noticed that a reference was made to the Eleventh 

Circuit. Well, why didn’t the Eleventh Circuit reverse it? There 

must be something wrong. The fact of the matter is that the parties 

agreed to the consent decree. They agreed to the penalties that 

were set forth that the district court applied when there were 

breaches. The State acknowledged that it was in violation of the 

consent decree. 

So given that situation, the court of appeals’ hands were fairly 

tied given that we had an agreement and that the parties had 

agreed to the sanctions that were contained in the order. 

I see the light is on, but I would suggest and I trust that you 

will read my full testimony because I discuss in greater detail the 

reasons why this legislation is most inappropriate. 

[The prepared statement of Judge Jones appears as a submission 

for the record.] 

Chairman SESSIONS. Thank you, Judge Jones. 

Professor Sandler? 

STATEMENT OF ROSS SANDLER, PROFESSOR OF LAW, AND DIRECTOR, CENTER FOR NEW YORK CITY LAW, NEW YORK 

LAW SCHOOL, NEW YORK, NEW YORK 

Mr. SANDLER. Thank you very much. I am very pleased to be 

here, Senator Sessions, and to speak on this panel. 

I come at this in a rather unique way. I was an attorney for 10 

years at the Natural Resources Defense Council and litigated these 

cases. I then became a Commissioner in the City of New York, 

where I became a defendant in the cases. So I have been on both 

sides. 

14

Chairman SESSIONS. The Natural Resources Defense Council, 

that would be a pro-aggressive environmentalist group. Is that correct? 

Mr. SANDLER. Yes, sir, and an effective one, and still a very effective one. 

I then became a law professor, and one of the areas I was interested in was the rules that governed the remedies of these institutional reform cases. 

The Federal Consent Decree Fairness Act allows courts to protect 

rights but, otherwise, let’s elected officials run State and local government. Bargains written into consent decrees, the Act makes 

clear, are not contracts but are judicial remedies to be measured 

against Federal law. This prevents a hobbling of State and local officials by prior bargains, a situation that has been described here 

several times, such as that in Tennessee described by Senator Alexander. 

The major criticism of the Act is that it would lessen the capacity 

of Federal judges to protect rights. Plaintiffs would not enter into 

consent decrees. Defendant officials would avoid complying with 

Federal law. Both of these criticisms are easily refuted. Consent decrees will still be used for several powerful, compelling reasons. 

First, when parties do not consent—and none of the people have 

spoken to this—the rules that govern remedies tightly limit what 

a judge can order. Judge-made remedies are limited to correcting 

proven violations. Judges may not stray from that standard. 

For example, plaintiffs might prove that special education students have been deprived of adequate transportation. The judge 

under the rules could only order a remedy to correct the transportation violation. In a consent decree, however, the parties might expand the decree. They might include such items as school accessibility and classroom activities. This is a powerful incentive for both 

plaintiffs and defendants. It allows more give and take, expands 

the potential for compromise, and offers greater opportunities to 

achieve long-term goals. 

But there are other compelling reasons as well. Consent avoids 

delay. It accelerates the time when defendants become subject to 

contempt proceedings. It avoids the expenses and uncertainties of 

trial. It allows plaintiffs to begin getting fees. It prevents appeals. 

But having said that, would officials use this Act to avoid complying with the decrees that are entered? Officials today fail to 

comply with consent decrees, and officials will no doubt fail in the 

future? The relevant question is this: Will the Act make it more 

difficult for judges to compel compliance? I believe that the Act will 

make it easier to compel compliance. 

First, the Act does not affect any of the existing enforcement 

tools. Judges will still be able to hold officials in contempt, fine officials and their agencies, incarcerate recalcitrant officials, compel 

explanations and reports, appoint monitors, and hold officials up to 

public scorn as lawbreakers. 

Building on these powers, which are untouched by the Act, the 

Act actually improves the potential for enforcing compliance since 

it is tied so closely to Federal law and not to the bargains. 

First, State and local officials will still have to have a program 

to comply with Federal law. It is, with all due respect, demaVerDate 0ct 09 2002 14:05 Nov 17, 2005 Jkt 024548 PO 00000 Frm 00018 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\24548.TXT SJUD4 PsN: CMORC
15

goguery to say that this will blast apart the ability of courts to enforce. It will not be enough for officials to say the old plan failed. 

They must still satisfy the judge that they will remedy existing violations of Federal law. And this is a helpful change since it allows 

officials to quickly adjust remedial programs to meet contemporary 

challenges and new circumstances. 

Second, in order to terminate court supervision, the State or local 

officials must be able to overcome plaintiffs’ proof that the court is 

still needed to prevent future violations. Officials not in compliance 

will be faced with the certainty of judicial hearings and a finding 

that they are violators. 

Third, the Act requires the judge to keep in sharp focus the Federal rights that the plaintiffs may enforce in court. This gives 

judges a firmer basis to compel defendants to meet their obligations. 

Now, there are areas that might be improved in this statute, and 

I would like to mention a couple. I think that the Committee may 

consider the 90-day limitations. It may be too short. The provisions 

about Special Masters might be looked at and whether they are as 

important as others. The application of the Act to decrees where 

the Department of Justice is the primary plaintiff might be looked 

at, as well as the items that Representative Berman brought out, 

State versus State with original jurisdiction of the Supreme Court. 

They might not be appropriate for this legislation. And there are 

definitions in it which might also be looked at. But the important 

point is that the consent decrees can be enforced and the rights 

will be sustained. 

Now, lastly, some say the consent decree problems disappeared 

with the Supreme Court’s opinion in Frew v. Hawkins. I wish that 

were so. David Schoenbrod, my colleague, and I have written about 

that, and the opinion is dictum. It does not change the law, and 

the rules on modification remain as arduous and rigid as, in some 

cases, Judge Jones has even mentioned in some of his cases. 

There is still need for Congress to make clear that judges are to 

continue to enforce Federal rights while also making clear that 

State and local officials should be able to rid themselves of decrees 

that are broader than necessary to vindicate Federal law and protect rights. 

Thank you. 

[The prepared statement of Mr. Sandler appears as a submission 

for the record.] 

Chairman SESSIONS. Thank you, Professor Sandler. 

Professor Jost, if you would yield for a moment, Senator Schumer 

has been over consulting with the President on who will be our Supreme Court nominee, and he has just arrived. 

[Laughter.] 

Senator Schumer. I would like to let everybody know who it is 

going to be—after 9 o’clock. 

Chairman SESSIONS. Senator Schumer is a very active member 

of our Court Subcommittee and Judiciary Committee, and I would 

be pleased to recognize you at this time for an opening statement. 

16

STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR 

FROM THE STATE OF NEW YORK 

Senator SCHUMER. Well, thank you, Mr. Chairman, and I want 

to thank all the witnesses. 

First, I do want to thank you, Mr. Chairman, for your fairness 

here. We have an equal number of witnesses on both sides in a 

very complicated and difficult issue, and I appreciate it. 

Let me say first at the outset, you know, somebody like myself 

who believes that the courts are an important tool to enforce people’s rights, but at the same time I am a pro-government guy. I am 

pro-government. I think governments represent people, and we 

kick them around a lot, but they are very important. So you have 

two sort of worthy groups colliding with each other, and I have 

seen consent decrees do both. I have seen consent decrees do miraculous things for people who need help. I have also seen consent decrees that have been in effect for a very, very long time and sometimes outlive their usefulness, and yet it is very hard to get out of 

them, particularly when they are signed in perpetuity. 

So I am very interested in this subject and in this hearing, and 

I do not approach it in a doctrinaire way. I want to put my entire 

statement in the record, and I do not think I am going to—although if Jeff is outside, he may want me to read it, or we can go 

on to the next witness. But I would say this, a couple of points 

here, as somebody who understands the impetus for the legislation 

and at the same time understands the need for consent decrees to 

have effectiveness. I would make a couple of points that sort of 

stand out. 

Four years seems awfully short, or 4 years or when the highest 

official who was the party to the agreement, you know, when his 

term or her term expires, that seems even shorter still. These consent decrees should not be tied to who is in office. They should be 

tied to the Government, which has long-term and effective interests 

here. So that part of it I think—those two parts I think should be 

re-examined. 

The 90 days, the court has to rule on the motion within 90 days 

or the consent decree is automatically nullified. That seems if the 

pendulum may be too far in one direction, that swings the pendulum already too far in another direction. 

So I would say those are two parts of the bill that I think go too 

far, but that does not mean that some kind of compromise could 

not come about. I don’t know who the sponsors are in the House. 

As I look at the list of sponsors here, they tend—I saw Ben Nelson 

is the only Democrat—and Mark Pryor, okay. I think you could 

probably, I would say to my friend from Tennessee, you might get 

broader support by some modifications. I am not committing to 

that, but it is something that I would be open to. 

I think I will leave it at that. I have a statement, but I will leave 

it at that. Since I was late, I do not want to bore people with it. 

This is a real problem, and yet there are lots of other real problems 

out there consent decrees tend to help with. And I think, at least 

in my experience in New York City, Professor Sandler, it is the 

ones that have been on the books for 15 or 20 or 25 years that 

seem to be—you know, they sort of outlive their usefulness. I have 

done a lot to help the homeless, and yet I have seen the homeless 

17

consent decrees in New York used for purposes that went way beyond the intention, I think, of what they were supposed to do after 

a period of time. 

So this is very interesting. First I want to salute our Chairman 

in bringing the issue up. I want to salute Mr. Alexander for putting 

this together. As I said, I think it goes a little too far in one direction, but maybe there is some kind of compromise that after a certain longer period of time, maybe 10 years, an ability to re-examine 

the consent decree in a way makes it a little easier to do that than 

now. If the judge is immutably on one side or if the plaintiffs obviously say that is our only interest, you may need some pushback 

a little bit. 

With that, Mr. Chairman, I thank you. 

Chairman SESSIONS. And we will put your full statement in the 

record. 

Chairman SESSIONS. Professor Jost, we would be glad to hear 

your observations at this time.

STATEMENT OF TIMOTHY STOLTZFUS JOST, ROBERT L. 

WILLETT FAMILY PROFESSOR OF LAW, WASHINGTON AND 

LEE UNIVERSITY SCHOOL OF LAW, LEXINGTON, VIRGINIA

Mr. JOST. Thank you very much, Mr. Chairman and Senators.

In addition to qualifications that Mr. Sessions presented, I also 

have served as an employee of local government, as an appointed 

State official, and have also done a great deal of work on the legal 

systems of other countries, particularly the very activist roles the 

German courts play in health insurance in that country. So if anyone wants to engage in a comparative discussion, I would be happy 

to talk about what other countries do.

If enacted, S. 489 would vitiate the enforcement of four decades 

of Federal legislation, including the Voting Rights Act, the Americans with Disabilities Act, the Nursing Home Reform Act of 1986, 

and would not only block private parties from enforcing these laws, 

but would also tie the hands of the Department of Justice by largely eliminating consent decrees as a means of settling disputes.

As Senator Alexander has just told us, this bill has two primary 

impetuses. The first is Professors Sandler and Schoenbrod’s book, 

‘‘Democracy by Decree.’’ I have read this book, and it seems to me 

it has two fundamental objections to consent decrees. First, they 

can be messy, they can be expensive, they can take a long time to 

wrap up, and they do not always achieve their goals. This is true, 

of course, with every effort to implement a complex government 

program, with or without consent decrees.

As Congressman Blunt, one of the House sponsors of this legislation, admitted at the recent AEI seminar, ‘‘I really think this is 

more about inactive public officials than about overly active 

judges.’’ But the problem of irresponsible government officials will 

not be solved by getting rid of consent decrees. In all likelihood, it 

will, rather, get worse. 

Second, if you read Professors Schoenbrod and Sander’s book, 

they argue that consent decrees are used to implement ‘‘soft 

rights,’’ by which they mean the rights created by all of the landmark statutes passed by this body over the past 40 years to assure 

18

all Americans clean air, safe drinking water, basic medical care, 

and freedom from invidious discrimination. Their fundamental 

problem, that is, is not with the courts. It is with Congress. They 

first begin by talking about Congress and then move on to talk 

about the courts. 

If you agree with them that Americans should no longer enjoy 

these rights, take away the rights, but don’t do it sub silentio by 

limiting the remedies. 

The second factor driving this legislation, I believe, is the situation of the Medicaid program in Tennessee. Last year, the Federal 

Government spent over $5 billion Federal taxpayer dollars in Tennessee on Medicaid. For every dollar Tennessee spends on its 

TennCare program, the Federal Government spends two. It is not 

unreasonable to expect Tennessee to comply with Federal law in 

spending these Federal taxpayer dollars. 

The TennCare program is bound by four consent decrees to 

which it agreed to correct violations of the Federal Medicaid law. 

In 2003, current Governor Bredesen personally renegotiated all 

these decrees. He stated at that point that the negotiated changes 

‘‘put the State back in the driver’s seat.’’ The former director of 

TennCare testified in court 2 weeks ago that Governor Bredesen 

was heavily involved in renegotiating these consent decrees in 

2003, that the State got most of what it wanted in those negotiations, and that the consent decree is not to blame for TennCare’s 

mushrooming costs. Now he has decided that it is no longer convenient to comply with these decrees, and this legislation would 

free him from those constraints. 

I come from Virginia, and in the Old Dominion we still believe 

in honor. If you sign an agreement in court, you live by that agreement. You do not try to walk away from it. And I believe that is 

what Tennessee is trying to do here. 

It is vital to understand that the proposed legislation only limits 

the effectiveness of consent decrees, not of litigated decrees. Consent decrees save our country vast sums of money in legal costs. 

They cut dramatically the need for discover, pretrial preparation, 

and trial time. And perhaps even more importantly, as Professor 

Sandler acknowledged, they allow both parties, including the State, 

to shape the decision of the court. 

Two years ago, Tennessee stated to the court that the modifications Governor Bredesen agreed to were designed to ‘‘enable the 

State to achieve significant savings’’ and were ‘‘materially advancing the State’s ability to stabilize and preserve the TennCare program.’’ 

The State represented to the court that that consent decree was 

not just good for the plaintiffs, it was good for the State as well. 

A fully litigated decree could have had a very different effect. 

I disagree with Professor Sandler, my colleague, that consent decrees will still be entered into if this legislation is adopted. I believe that no responsible plaintiff’s attorney will enter into a consent decree again with State or local government. Most cases now 

that are settled by the consent decrees would have to be litigated 

to judgment or else the plaintiff would risk the possibility of the 

decree simply disappearing as soon as a new public official was 

elected or 4 years elapsed. 

19

The Supreme Court unanimously last year in Frew v. Hawkins

recognized a flexible standard for modification of consent decrees. 

If Tennessee wants yet more modifications in this consent decree, 

it can ask the courts to modify them. It is, in fact, doing that right 

now as we speak. The Court is reconsidering that consent decree. 

Recently, the circuit court of appeals reversed a decision of the district court rejecting a modification. There is not a problem here 

that needs to be fixed. 

If this bill is enacted, however, it will cause untold new problems 

and impose significant litigation expenses on the Department of 

Justice, the beneficiaries of Federal programs, and the States. 

Please vote against letting this legislation out of Committee. 

I would also like to ask to submit to the record my response to 

Senator Alexander’s article that appeared a week later in the Legal 

Times. I recognize that I do not have his standing, but I would like 

for you to read my humble response. 

Thank you. 

Chairman SESSIONS. We will make it a part of the record. 

[The prepared statement of Mr. Jost appears as a submission for 

the record.] 

Chairman SESSIONS. Dr. Greve? 

STATEMENT OF MICHAEL S. GREVE, JOHN G. SEARLE RESIDENT SCHOLAR, DIRECTOR, AEI FEDERALISM PROJECT, 

AND CO-DIRECTOR, AEI LIABILITY PROJECT, AMERICAN ENTERPRISE INSTITUTE, WASHINGTON, D.C. 

Mr. GREVE. Thank you, Mr. Chairman. I too, for obvious reasons 

of professional self-interest, want to start with the AEI event that 

has been mentioned repeatedly several weeks ago where Senator 

Alexander and Congressman Blunt were kind enough to appear, 

and both of them made what I think is the crucial point. This is 

not about restraining activist courts. This is about restoring political responsibility, and I think that is exactly the right analysis. 

What is the crucial problem here? Whence this flight from political responsibility? And I think the answer is the proliferation of 

entitlement statutes over the past three decades. The way it works 

is Congress gives States or local governments some money, and in 

exchange imposes some conditions, and it then makes the conditions privately enforceable. And as it turns out, that structure dilutes political responsibility up and down the chain. 

The local governments or the recipients, the State governments 

that receive these funds, usually have their own incentives to expose themselves to consent decrees, and tons of these so-called consent decrees are, in fact, collusive. There is decision after decision 

after decision where Federal judges and justices have complained 

about that tendency, and the reason and the incentive is perfectly 

obvious. If you have to run these programs, you want to shield your 

particular program and your budget from State legislative oversight. And the most convenient way to do that is to say, hey, we 

are under a court order, we have to spend this money. 

Congress is off the hook under these conditions because if something goes wrong at the local level in consequence of a consent decree, Congress can always complain about activist courts or ‘‘We’re 

20

shocked,’’ shocked to learn that these local governments don’t comply with our conditions. 

The court is off the hook because it can always say, ‘‘What do you 

mean I am being activist? I am just doing the will of the Congress 

here.’’ 

And the plaintiff groups are off the hook because they can always 

say, look, we won these entitlements in Congress, we won them fair 

and square; it is only a matter of simple justice that we now get 

to enforce them. 

And so at the end of the day, nobody is responsible. Nobody has 

an incentive to cut through all of this. 

I entirely agree with Congressman Berman that at the end of the 

day, what is desirable is a change in the underlying law, but I disagree respectfully with the contention that this is not a very, very 

good first step that deals very, very effectively with a particularly 

extreme example of outlier of entitlement statutes. And the reason 

why I am saying that is that what consent decrees do is that they 

allow these far-reaching remedies that intrude very, very deeply 

into the political management of a State or local government without any finding of any violation of any law. And what this bill blissfully and mercifully does is it gives a chance not to relitigate the 

original question because it has never been litigated before, but finally focus the court’s attention and the parties’ attention on the 

crucial question, which is: Is there an underlying right or was 

there an underlying right that was violated in the first place, yes 

or no? 

I would finally add that it is either Congress that fixes this program or nobody can. The Supreme Court has over the past two decades, two and a half decades now almost, tried to address some of 

the problems of, loosely worded, entitlement statutes. To summarize the jurisprudence very, very briefly, it is Congress may expose 

State and local governments to suit, but only if it makes its intention to do so absolutely clear in this language of the statute itself. 

The purpose of that jurisprudence is precisely the purpose of this 

bill. It is to focus responsibility. The court wants to make Congress 

say, ‘‘Do you really mean to do this, yes or no?’’ It wants to give 

State and local governments a chance to know and realize in advance what they are in for when they subscribe to these kinds of 

programs so that at the tail end they do not have an excuse anymore. 

The effort to end or terminate consent decrees or to allow State 

and local governments to move for termination is fully consistent 

with that jurisprudence, and it acts at a front where the Supreme 

Court itself has been incapable of acting. Everybody in the literature agrees, it is very, very hard to terminate these consent decrees, very, very hard for appellate courts and the Supreme Court 

to do anything about it. 

Thank you. 

[The prepared statement of Mr. Greve appears as a submission 

for the record.] 

Chairman SESSIONS. Thank you. 

Ms. Schiffer? 

21

STATEMENT OF LOIS J. SCHIFFER, FORMER ASSISTANT ATTORNEY GENERAL, ENVIRONMENT AND NATURAL RESOURCES DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Ms. SCHIFFER. Thank you, Mr. Chairman, for the opportunity to 

testify today about the grave problem that S. 489 poses for effective 

environmental protection in our country. I am Lois Schiffer, currently an attorney in private practice at Baach, Robinson & Lewis 

in Washington, D.C., and from 1994 to 2001, Assistant Attorney 

General in charge of the Environment and Natural Resources Division in the U.S. Department of Justice. That division is responsible 

for working with U.S. Attorney’s Offices on virtually all Federal 

civil and criminal environmental enforcement actions under the 

laws Congress has passed to protect against and clean up pollution. 

I have approved and signed literally hundreds of consent decrees 

and have negotiated many. A number have been in cases against 

State and local governments and would be directly affected by S. 

489. That bill, if enacted, has fatal flaws that would undercut environmental protection in this country. 

First, despite what Mr. Sandler says, the bill will virtually eliminate use of consent decrees and environmental enforcement actions 

against State and local governments because no responsible Government attorney or citizens group would enter an agreement 

where the other party, a defendant State or local government, 

could decide not to keep its word and then could tie the agreement 

up in litigation over termination in 4 years or less. 

Second, S. 489 would thus eliminate one of the essential tools for 

implementing and enforcing our Nation’s environmental laws. 

Since Congress has through law committed to the American public 

clean water, clean air, safe drinking water, and other protections, 

Congress itself should be dismayed. Once it appears that a State 

or local government has failed to comply with an environmental 

law, everyone benefits if attention is turned to how to fix the problem rather than litigating over whether and how the problem occurred. That is why so many environmental enforcement actions, 

whether brought by the United States, by States, or by citizens 

groups as specifically recognized in the environmental laws, turn to 

settlement discussions and consent decrees. The remedies that the 

enforcers seek and that the State or local governments agreed to 

may take long periods of time to implement, often because extensive work is involved. I will outline a few useful examples, then 

make four quick points about the problems of S. 489 that the examples illustrate. 

First, sewage treatment cases. In New Orleans, the 50-year-old 

system for collecting sewage worked so poorly that when it rained, 

raw human sewage ran in the streets. Not very pleasant. The 

United States and the New Orleans Sewerage and Water Board entered into a consent decree—I negotiated part of it myself—that 

committed New Orleans to take specific steps over 11 years to 

build a new sewage collection system. The massive nature of the 

project dictated the length of the decree. 

We negotiated a similar consent decree, I am sure you will be interested to know, for wastewater collection and treatment in Jefferson County, Alabama, which is still in place, and I am sure, SenVerDate 0ct 09 2002 14:05 Nov 17, 2005 Jkt 024548 PO 00000 Frm 00025 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\24548.TXT SJUD4 PsN: CMORC
22

ator, that your constituents are happy not to have sewage improperly treated. 

In Wayne County, Michigan, which covers Detroit, the United 

States and the county just returned to court to ask for termination 

of a consent decree after 11 years because the county had essentially fixed the problem, and that is an example of how the system 

works. People know how to get decrees terminated when they have 

lived their useful life. 

Finally, this past February, the Federal court in Tennessee—

Senator Alexander, you will be particularly interested in this—

signed a consent decree entered into as plaintiffs United States, the 

State of Tennessee, and the City of Knoxville—they were the plaintiffs—and the Knoxville Utilities Board, an independent agency of 

the city, was the defendant, requiring the board to take specific 

steps to analyze and fix sewage overflows. The work will cover 12 

years, and the press release states it is estimated to cost $530 million. Of necessity, that work is going to take a long time. It is important to note that it was Senator Alexander’s State as the plaintiff. 

A second type of example, the consent decree to restore the Everglades, which was entered into after a lawsuit was brought in 

1992, and there, there is great commitment by the United States, 

the State of Florida, and the South Florida Water Management 

District, as well as this Congress and the present Governor of the 

State, to really clean up and restore the Everglades. It is a very 

long-term project and of necessity that consent decree has to run 

a while. 

All of these would be stabbed in the heart by S. 489, and I will 

conclude with four quick reasons. 

First, this bill would mean that the Justice Department and citizens groups would stop entering into consent decrees to resolve environmental cases brought against State and local governments 

since complying with the laws passed by Congress can take time, 

as I have indicated. A law that means consent decrees may be terminated after a short time eliminates them as a useful tool. 

Second—and I will be quick—this bill would increase, not reduce, 

the amount and scope of litigation in our courts with greatly added 

expense and grave burden on resources of the Justice Department 

and U.S. Attorneys, State governments that both bring enforcement cases and defend them, local governments that would face 

trials, not settlements, and Federal courts. This is also completely 

contrary to efforts in every Federal court to encourage cases to settle and is encouraged by a law of this Congress, 28 U.S. Code 651, 

the Alternative Dispute Resolution Act. 

Third, the bill will seriously set back the enforcement of environmental laws passed by this Congress and give us all dirtier air, 

water, and land. 

And, finally, the bill is completely unnecessary because particularly under the recent Supreme Court decision in Frew v. Hawkins

that you have heard about, State and local governments and courts 

already have good tools to address the concerns it seeks to remedy. 

Thank you. 

[The prepared statement of Ms. Schiffer appears as a submission 

for the record.] 

23

Chairman SESSIONS. Thank you very much. Those are excellent 

discussions that we have had today, and we thank you for it. Each 

one of you brings an important perspective to the matter. 

It just strikes me that prior to the common nature of consent decrees, if a community polluted the water and were sued, they had 

to pay. And if they did it again, they would get whacked again, and 

then get whacked again, and pretty soon a jury or the judge would 

really whack them if they failed to fix it. 

But I as a United States Attorney for 12 years did enter into and 

enforce decrees that probably were helpful in the sense that it established a time period to accomplish a goal, Ms. Schiffer, that you 

mentioned it might take more than 4 years to accomplish. But the 

problem is, what if after 4 years somebody has solemnly agreed to 

a plan and it is plainly obvious that the plan would be better if it 

were modified? What is the current standard of review by a court 

to establish that? 

Ms. SCHIFFER. May I respond, Senator? 

Chairman SESSIONS. Yes. 

Ms. SCHIFFER. Well, first, of course, if it is clear that it needs to 

be changed—and the Everglades is a perfectly good example of 

something where everyone agreed after a while they had learned 

more and it needed to be changed—the first thing is to go back to 

the parties on the other side and say, ‘‘We think this should be 

changed.’’ And often those agreements can be worked out in that 

fashion. 

Chairman SESSIONS. Sometimes, but a great power rests in the 

plaintiff’s hands. Correct? 

Ms. SCHIFFER. Well, that is if you can have agreement, and if 

not, it has certainly been the standard before the Frew case and 

reiterated in Frew that if there is a change in circumstances, a 

party can go back to court and say there is a change of circumstances, the consent decree should be modified. And I would 

add that Frew specifically urges that deference should be given to 

elected officials, to State and local governments, in looking at 

whether there should be modifications to consent decrees. 

But I would also note that even apart from the consent decree 

issue, what we are really talking about here is a set of pollution 

control obligations that are imposed on State and local governments by the laws of this Congress. So that even without the consent decree, the obligation on the local government to, as you say, 

fix the pollution problem does not go away. 

But the courts have shown themselves perfectly capable, if there 

is a change of circumstances, if people find new technologies, if 

there is a better, more efficient way to do it, to modify the consent 

decree. 

Chairman SESSIONS. Well, in certain circumstances—and I think 

the U.S. Department of Justice probably has a better reputation as 

a plaintiff than most. Maybe others—or, Professor Sandler, would 

you like to comment on what it takes to amend some of these decrees? 

Mr. SANDLER. Yes, I would very much like to answer that. Thank 

you. 

The leading case is called Rufo, R-u-f-o, and it requires that the 

parties seeking the modification—usually the defendant—has to 

24

show unforeseen circumstances, not just change of circumstances, 

as Ms. Schiffer said, but unforeseen circumstances; and, secondly, 

that the modification presented to the court must be suitably tailored, that is to say, a minimum change necessary to essentially 

preserve the bargain. And that is why it is so difficult to get modifications. So let me give you an example. 

In the 1970’s, the New York City Housing Authority was evicting 

tenants in a way that was unconstitutional, so there was a lawsuit 

brought, and a consent decree was entered which supplied a very 

elaborate year-long process to evict, far greater than what the local 

statutes required. Twenty years later, crack cocaine is devastating 

parts of the Housing Authority. Some tenants were using their 

apartments to sell cocaine, so the tenants and the Housing Authority said, ‘‘We have got to get rid of these people if they are convicted of using their apartments for selling cocaine. Let’s use the 

quick eviction proceeding to sustain the safety of the Housing Authority.’’ 

Plaintiffs’ attorneys said, ‘‘Oh, no, we have this 22-year-old consent decree. You have to take a year to evict people.’’ And so they 

had to have a trial before Judge Prescott. And what were the 

issues? Was crack cocaine unforeseen when they had heroin 22 

years later? So they had experts testify as to how unforeseen crack 

cocaine was or whether it was not or whether it was the same; and, 

secondly, they had experts come and testify as to whether or not 

there were other suitably tailored things to do other than evict, 

such as hire more police. And so you had a battle of experts. Three 

days of hearing, 55 pages of opinion, 18 months, the court finally 

says it is okay to evict cocaine sellers who would use their apartments to sell. 

During that time, the tenants were so beside themselves with 

what their lawyers were doing, they hired another lawyer to attack 

the old lawyer. And this is a typical—this is what can happen 

under the current rule, which is why this legislation is so important, because it says, wait a second here, the measure of Federal 

court jurisdiction is the laws that Congress passes and the Constitution. It is not the private bargains that get written into these 

consent decrees. 

I wish Representative Berman was here. He talked about the 

Jose P. case, with which I am enormously familiar. He says it cost 

a lot of money. One of the reasons it cost a lot of money is that 

Federal law says every child is entitled to an evaluation by one 

person. New York in 1979 said, well, let’s do three people; in other 

words, three times what Federal law requires. That is still the requirement. And when the city tried to get out from under that, the 

social worker union, which is one of the three groups, intervened 

in the case and said, ‘‘You have to keep hiring social workers, 

whether you want to or not, because the consent decree says you 

have to.’’ And then went back to Federal law and said only one, but 

the court said, ‘‘I am sorry, a bargain is a bargain.’’ And in the 

words of my colleague here, honor it. But consent decrees should 

not be about honor. You honor them when you sign them for sure, 

but the measure of Federal court jurisdiction is what the Federal 

laws require, what Congress passes, and what the Constitution—

and those other bargains hobble elected officials and subsequent ofVerDate 0ct 09 2002 14:05 Nov 17, 2005 Jkt 024548 PO 00000 Frm 00028 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\24548.TXT SJUD4 PsN: CMORC
25

ficials who are trying to manage these very complicated programs, 

social programs and other programs on a day-to-day basis within 

real budgets and with real choices, and the consent decrees close 

in on the elected official and prevent them from doing their job. 

And, lastly, I would like to just object, if I could, to the discussion 

about treatment plants, with which I am also very familiar. Of 

course, it takes a long time to build a treatment plant, and consent 

decrees under this statute would not be terminated. You would still 

have to comply with the Water Act. And if you could do it without 

a treatment plant, God bless you. But if you cannot, you are going 

to have to build a treatment plant. And no statute of this kind of 

going to stop the impact of the Clean Water Act. 

Chairman SESSIONS. That is something you are familiar with, I 

am sure. I recall, as you talk about the settlements and how they 

are entered into, I know Ms. Schiffer would have a high opinion of 

the Department of Justice and how they do these things, but the 

Attorney General of Alabama, my predecessor, met in a secret room 

with plaintiffs’ attorneys and agreed, in violation of the Alabama 

Constitution, to add two new judges to the Alabama Supreme 

Court. And the judge approved this agreement without any public 

hearings. 

Now, there was a hearing to decide whether or not to accept the 

consent decree, but judges tend to accept the decrees entered into 

by the parties on the presumption that they are honest, good-faith 

litigators and they are defending the issues. But sometimes things 

go awry and they are not really sound judgments. 

Everybody is willing to talk, and who should I recognize? All 

right. My time has not turned to yellow yet, so I would go in this 

order: Ms. Schiffer, Mr. Greve, and Mr. Jones. And if you all would 

keep your comments sort of brief so I can recognize Senator Alexander, because my time will soon be out. 

Ms. SCHIFFER. I will be very quick. Two points. 

One, Rufo was decided 2 years before Frew. Frew clearly said if 

the State establishes a reason to modify the decree, the court 

should make the necessary changes, and it also said deference 

should be given to elected officials. So he really does not have the 

current standard right. 

Secondly, as to whether it takes place in closed doors, under the 

pollution statutes there are either specific requirements in the statutes or in regulations that the court have a notice and comment 

process and an opportunity for the public. So under these laws, 

closed doors does not work. 

Chairman SESSIONS. Well, it really is a closed door in the sense 

that there is no public Congressional hearings by the people who 

are going to pay the money. It is the lawyers. Ms. Schiffer, the Department of Justice is not empowered to run the Prichard, Alabama, sewer system. Yet they go into a private meeting with a lawyer for the city, and they agree how the system should be fixed. 

That is the way it works, and the city and the taxpayers are basically told that this is what the court said and you are stuck with 

it. 

Now, sometimes it is justified. Dr. Greve? 

Mr. GREVE. Very briefly. Thank you, Mr. Chairman. Just two 

brief points. 

26

First, what everybody agrees on in this very contentious debate 

is that we have very little empirical evidence as to how these 

agreements actually work, how many are there, how many are terminated. So we do not know very much about the termination, but 

we know about one context in which the Supreme Court has laid 

down much more specific, much more precise guidelines with respect to the termination of the decrees, and that is school desegregation, which is not covered by this bill but I am mentioning it because it is the only systematic empirical study that I am aware of 

in this context. And there those standards have done absolutely 

nothing—nothing—to help district courts terminate these desegregation decrees. 

With all due respect, the notion that some abstruse Supreme 

Court standard, whether it is that of Frew v. Hawkins or that of 

Rufo v. Inmates, might conceivably help district courts, might have 

some administrable rule that it actually applicable is just erroneous. 

I just want to say one more thing about the modification of consent decrees. It is true, yes, you can modify consent decrees somewhere along the way, and even that is, in my judgment, harder 

than it ought to be. But what is crucial, the crucial difference between the current modification procedures and this bill is this: In 

current modification procedures, the only reference point is the 

working of the remedy itself. Nobody ever gets to the question: Do 

these people, do these plaintiffs, are they entitled to be in this 

court? And are they entitled to this remedy? You never get to that 

because everybody is obsessing over, well, we agreed to the remedy 

11 years ago, or whatever, and now it doesn’t really work anymore. 

It is completely self-referential over time. This bill would change 

that. That is a good thing. 

Chairman SESSIONS. Professor Jost and Judge Jones, briefly. 

Mr. JOST. Just very briefly, I would like to reiterate one point 

that Dr. Greve made. Professor Sandler caught himself when he 

said this is a typical situation; then he said this is one example. 

I do not think we know what the typical situations are, and I think 

we could sit here all day with him coming up with examples of consent decrees that do not work and some of us on the other side 

coming up with examples of consent decrees that did their job and 

were terminated. 

I guess what I am really worried about is the drop-dead solution 

that is proposed here. A number of people have put a lot of pressure on the President to say, okay, one more year and we are out 

of Iraq or two more years and we are out of Iraq. And I think he 

has sensibly said, ‘‘As soon as you say one more year or two more 

years, then it tells people how much longer they are going to have 

us around and then we are gone.’’ 

One of the consent decree that Professor Sandler refers to in his 

book was a child-care consent decree in Utah that did have a 4-

year limit. And what happened was that the State simply did not 

do anything for 4 years, and at the end of the 4 years they said, 

‘‘We are out of here.’’ And the plaintiffs went back in and said, ‘‘No, 

they have not complied yet. We need to have a modification of this 

consent decree.’’ And the court did modify it to extend the consent 

decree, and it was upheld by the circuit court of appeals, which 

27

said, ‘‘The State has refused to comply. They have to comply before 

we can end this.’’ 

And I think that that is the situation we see here. I mean, there 

may be a problem here that needs to be fixed, but I think this is 

a solution that is going to cause far more problems than it will fix. 

One final thing, and that is with respect to the 90 days. The Judicial Conference has sent this Committee a letter saying that the 

90-day period is completely unrealistic. Nobody can retry a case in 

90 days. And so if you are going to have the 90-day period, you 

might as well just say it ends at the end of 4 years because it is 

not going to be—no one can completely retry a case in 90 days. Nobody believes that that is possible. 

Chairman SESSIONS. Judge Jones? 

Judge JONES. First of all, I have to respond to Dr. Greve’s comment about school desegregation. I do not know what he has been 

reading, but the landscape is full of cases being terminated on the 

finding of courts that the district has reached unitary status—The 

Columbus case, the Detroit case, Bradley v. Millican, the Dayton 

case, the St. Louis case, in which the parties themselves reached 

an agreement. After many, many years of functioning under a consent decree, they concluded that they had achieved the objectives 

of the settlement. So in school desegregation cases, we are barking 

up the wrong tree. 

We can sit here and throw out all kinds of horribles about consent decrees that may not have been the best or there may have 

been flaws in them. But why don’t we talk about the causes that 

led to the litigation that resulted in the consent decrees, the conditions that resulted from the default by State governments and by 

municipal governments in meeting their obligations to citizens. 

Why don’t we talk about the remedies that were provided by Congress that the citizens were availing themselves of, and in order to 

avoid the divisiveness that is associated with litigation, they agreed 

to conclude the matter by consent decree. 

Now, if communities wanted to have their dirty linen aired, if 

they want these protracted trials, if they wanted to undergo the expense of demonstrating from A to Z what is happening to citizens 

by virtue of the cities and States violating Congressional statutes 

or constitutional requirements, then we are going to jam up the 

courts, and we are going to have a horrible bottleneck. 

The courts are now understaffed. The budgets are being reduced. 

All the judges will tell you that they are functioning at less than 

optimum strength. They do not have the personnel. The clerk’s offices are working part-time. All the requirements of conducting 

full-scale litigation are not being fully funded. 

So we are going to have a situation in which lawyers are going 

to tell their clients there is no point in entering into a consent decree. Their clients are going to say, listen, after 4 years if we have 

to fight this battle all over again, let’s just fight the battle now. 

And the costs of attorneys’ fees that you have referred to will be 

nothing compared to what they will be if these cases are litigated 

to the nth degree. 

And what we have tried to avoid—if I may just have a second. 

Chairman SESSIONS. Just one second. 

28

Judge JONES. When I was litigating the NAACP and during my 

period on the court in which I was supportive of the direction the 

courts were taking to settle and solve cases and to initiate alternative dispute resolution strategies, it was to avoid the scorchedearth policy, the scorched-earth strategy of tearing communities 

apart by having all this litigation, having all these issues aired, 

getting people together, agreeing on a problem, agreeing on a solution, and then asking the court to endorse it by a consent decree 

following its fairness hearing in which all parties agree and the 

public agrees. 

And so I think we are—we may focus on the horribles, but let’s 

look at what led people to resort to the courts. And if we want people to lose faith in the court system, then I think we will go down 

this road of choking off remedies that are clearly made available. 

Chairman SESSIONS. Senator Alexander? 

Senator ALEXANDER. Thank you, Senator Sessions, and this is 

very, very helpful. I want to make a comment, and then I have got 

a couple of questions that would help me. 

As I listen to this, the 90 days requirements, it depends on what 

side you are on. If you are a Government official, if you are a Federal judge, if you are a plaintiff’s lawyer, you do not like 90 days. 

But what if you are the Governor of Tennessee and every month 

that goes by that the Attorney General has to run from the Federal 

district judge in Nashville, who is trying to run the Medicaid system, up to see Judge Jones in Cincinnati to get overruled, every 

month costs $43 million, and $43 million is an $800 pay raise for 

every single Tennessee teacher. 

And Professor Sandler, as was pointed out, said typical and then 

said maybe not typical. I am not sure these are not so typical. I 

think the people of my State, if presented with a question of should 

we want to be the number one State in America in the number of 

prescription drugs that we use, or would it better to spend a little 

less on prescription drugs and more on pre-school education, we 

elect our legislators and our Governor to make that decision. And 

we do not expect the Federal judge and a master and a plaintiff’s 

lawyer and someone in Washington to make it. That is not what 

we want out of a democracy. 

And if we are in Los Angeles and if in 1994 we want to ride more 

buses and in 2004 we want to ride more mass transit, we want our 

elected officials to make that decision for us. And if between 1974 

and 2004 we move from preferring bilingual education to English 

as a second language, we would like to have that be responsive to 

us. 

And I think Judge Jones’ point that the courts are busy just underscores the fact that when these policy decisions get lost in the 

Federal court today, the judges are really too busy to manage 

them. And they are turned over to faceless plaintiffs’ lawyers and 

to well-paid masters who run these programs instead of the elected 

officials. 

So I think fundamentally we are trying to restore some balance 

here and said rights are in the courts and policy is for elected officials. And, Mr. Jost, I think you are overspeaking a little bit when 

you say retry the case. This case has never been tried. This is a 

consent decree. This is where two people walk into the court and 

29

say, ‘‘Judge, this is our agreement. Will you approve it?’’ There is 

no retrying here. 

And as far as 90 days go, I would be real impatient with anything more than 90 days if I knew that I could give my teachers 

an $800 pay raise while we are waiting for the Attorney General 

to yo-yo back and forth between the Federal judge in Nashville and 

the circuit judge in Cincinnati to do what I thought I was elected 

to do. 

Now, let me ask this: Does anyone have any idea how many existing Federal court consent decrees there are today or what record 

there is of them? So if, say, I were elected Governor of California 

or mayor of Los Angeles, if I were elected mayor of the city of New 

York, how many consent decrees are there governing things that I 

thought I might be elected to do? And how would I find out a list 

of those Federal court consent decrees? 

Mr. SANDLER. That is a wonderful question. When we were writing the book, we tried very hard to get that answer. It turns out 

that no one knows. 

Most of the cases are private cases brought against State and 

local government where the Federal Government is not named as 

a defendant, so the Department of Justice does not track the cases. 

The agencies responsible, say the Department of Education for 

special education or the Department of Transportation or EPA, 

they do not track the cases either because they are not involved 

with them. So the agencies do not know. 

What I found, in order to find out where the cases were, the best 

sources were the organizations of attorneys who bring the cases. 

For instance, if you want to find out where the foster care—somebody mentioned a foster care case. There is an organization that 

tracks all the foster care cases across the country. It is pretty easy 

to do because there is only a handful of lawyers who bring them. 

And the organization not only tracks them where they are but the 

status of the case. And they print that on the website. So I was 

able to find out and it turns out that virtually every State has foster care litigation, and you can track it. But the Department of 

Justice does not know; the court judicial system does not know. 

Senator ALEXANDER. Do you have any guess how many there are, 

in New York City, for example? 

Mr. SANDLER. In New York City, hundreds. Hundreds. And probably thousands across the country because every State has them. 

Chairman SESSIONS. You mean hundreds in New York City that 

affect some agency— 

Mr. SANDLER. Oh, yes. 

Chairman SESSIONS.—of New York City government. 

Mr. SANDLER. Like there is a consent decree on vending machines in the schools under Federal law. You know, there is a consent decree, as we mentioned, on bilingual education. There are 

multiple consent decrees on bilingual education. Every aspect of social programs that Congress enacts, either under the Spending 

Clause or the Commerce Clause, will ultimately result in consent 

decrees. 

Senator ALEXANDER. Could I ask Judge Jones—I see he has his 

hand up. Judge Jones, would there be any objection to trying to 

30

keep some record of Federal court consent decrees? And if there 

were a way to do it, what would be the appropriate way to do it? 

Judge JONES. There are records and they are available. 

Senator ALEXANDER. Where are they available? 

Judge JONES. They are available in the executive office of every 

circuit. 

Senator ALEXANDER. In what? 

Judge JONES. The circuit executive office of every circuit. Every 

year the district judges file reports with the Office of the Circuit 

Executive of the—in my case, the Sixth Circuit. And there is an annual report prepared which breaks down the dockets of the district 

judges, the status of the cases, whether they are in litigation, in 

what stage, are they in discovery, are they in trial, have they been 

resolved by consent decree, and if the court is overseeing the decree. 

So those are available. They exist. And I am sure every circuit 

by order of—and I think at the Administrative Office of U.S. 

Courts, Mr. Mecham’s office, would have those records. 

Senator ALEXANDER. So if I am elected Governor of Tennessee, 

I could go to the Sixth Circuit and say, Please tell me every Federal court consent decree which is currently in effect which might 

affect the job I was elected to do? 

Judge JONES. Yes. You could get a report on the consent decrees 

that are under supervision in the district courts, in your case the 

Middle District of Tennessee, or within the Sixth Circuit; or you 

could go to the Administrative Office of U.S. Courts and get their 

annual report, which has the reports, compiles the reports of all of 

the circuits in the Federal system. So those numbers are available. 

Mr. SANDLER. They just do not tell you what you want to know. 

A decree has been entered. They do not tell you about modifications, and they do not tell you anything else about it. 

You know, I think it is important to understand how consent decrees get done. A complaint is filed. The first motion is either a motion for certification or a motion for preliminary injunction or summary judgment. There may never be a written decision in the case 

because those motions generate the discussions that lead to the decrees. So a case such as the Jose P. case, which Representative 

Berman mentioned, there has not been a written decision in that 

case in 15 years. Yet the parties are meeting every other week adjusting the consent decree. It just lives a life of its own. 

So the answer to your question is, Governor, if you really want 

to know, there is no source that will give you the information you 

really want to know. 

Judge JONES. May I just respond to that? This is tit for tat. A 

court speaks through its orders, and I do not know whether Professor Sandler has tried any class action cases or whether he has 

been a litigator in this arena or whether he has adjudicated these 

cases. But I can tell you, as a litigator for 10 years, plus I was Assistant United States Attorney in the Northern District of Ohio, I 

was a Federal court of appeals judge for 22 years, and I am now 

a litigating partner with a major law firm in which I am involved 

in many mediations and arbitrations and settlement of class action 

cases, a judge does not enter an order on his own whim. When a 

case is filed, the parties engage in discovery. There is a requireVerDate 0ct 09 2002 14:05 Nov 17, 2005 Jkt 024548 PO 00000 Frm 00034 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\24548.TXT SJUD4 PsN: CMORC
31

ment under the Federal rules now that parties must first explore 

settlement possibilities. 

If in the process of discovery it appears that there can be settlement, the parties can come to terms, then they will submit an 

agreement to the court for preliminary approval. The court will examine very meticulously the settlement against the claims that 

were contained in the complaint. Then if the court is satisfied that 

there has been—that this settlement is arm’s length and that it is 

fair and adequate and reasonable, the court will then give preliminary approval. Notice will be given to all members of the class, and 

they will be then notified to attend a hearing after they comment, 

either enter an objection or agree to opt out of the settlement. 

Then the court schedules this settlement agreement, and it is 

like a town meeting. Anybody can come—the Governor of the State, 

the Attorney General, the cabinet officers, the public at large, 

members of the class—and they can come and the court gives them 

full sway. They can address the issues. They can enter their objections. And if the court feels that there is merit to their objections, 

the court will deny the approval. If the court feels that the settlement is fair and adequate and reasonable, the court will approve 

the settlement and, therefore, enter a consent decree. 

Now, if in a year or two or three or four or 5 years there is some 

aspect about the settlement which is open to question, the party 

can repair to the court and ask the court for a hearing to modify 

and correct or even terminate the settlement agreement. And the 

court will then conduct a hearing and enter an order. So it is not 

the lawyers who run the courts. The courts run the courts. And the 

courts make a decision as to whether they are going to grant the 

relief that is being sought. 

So it is not accurate to say that private lawyers are calling the 

shots here. They have to petition the courts, and the courts make 

the decision, and they enter the orders, and courts speak through 

their orders. 

Chairman SESSIONS. Thank you, Judge. 

Do you want to follow up? 

Senator ALEXANDER. My red light is on. 

Chairman SESSIONS. Attorney General King, as a practical matter, have you found it difficult to alter or end the consent decrees 

that have continued for a long time? I do not think you got in your 

opening statement to refer to maybe other cases that you do in 

your written statement. What is the practical reality for Attorneys 

General? And have you an impression of how Attorneys General 

and Governors feel about protracted consent decrees? 

Mr. KING. I have an opinion about how the Attorney General of 

Alabama and the Governor Alabama feel about them, and they feel 

that they are oppressive. They feel that too often they evolve into 

an exercise where the lawyers frustrate their own client’s purposes, 

where you attempt to come into compliance to correct past discrimination practices, for example, and the lawyers object because in 

Alabama’s case they are being paid whether they win or lose, 

whether what they do is frivolous or whether it is helpful. And that 

creates a scenario by which plaintiffs’ lawyers are getting rich 

while the State of Alabama continues to suffer, continues to be unable to correct abusive practices. 

32

We have instances in Alabama, for example, in a case involving 

the delivery of child welfare services, where we agreed to come into 

compliance with certain standards. There is a court monitor in 

place whose job it is to make sure that the State of Alabama does 

that. We have now brought all 67 counties into compliance. We 

have asked the judge on the recommendation of the monitor he selected to release the State of Alabama from that consent decree. 

And, in fact, our experience is that now they are revisiting the 

counties again. They are doing something that falls completely outside the scope of the consent decree that the State of Alabama is 

a party to. And in many regards, the State of Alabama is helpless 

to do anything about it. 

Chairman SESSIONS. Are they paid for the time they spent doing 

that by the State? 

Mr. KING. Of course they are. Everybody is being paid. 

Chairman SESSIONS. By the State of Alabama. 

Mr. KING. By the State of Alabama. 

Chairman SESSIONS. The taxpayers. 

Mr. KING. Our lawyers, their lawyers, the court monitor—everybody is being paid. And in Alabama’s experiences, these also develop into an opportunity for the bureaucrats to use the courts as 

a mechanism to do what they cannot persuade the legislature to 

do. 

Chairman SESSIONS. That is an important subject. I hope we will 

listen to that. I have seen that. 

Mr. KING. I hope you will, too, because what we find in this case 

of which I speak right now, what we find is a judge who holds 

court, he listens to the legal arguments, then he opens it up to everybody in the room, and he says, ‘‘Tell me, do you have enough 

money to run your department? Do I need to order more money to 

be spent?’’ That is not the role of the Federal judiciary. That is the 

role of the Governor and the legislature of the State of Alabama. 

Chairman SESSIONS. Attorney General King, let me interrupt 

and get to this point precisely. In other words, sometimes the governmental entity being sued is happy to be in the fix to be thrown 

into this pot because he or she may hope that the plaintiffs will 

win and somehow the Federal court will order more money to go 

to their agency. Is that correct? 

Mr. KING. No, it is more serious than that, Mr. Chairman. This 

is an instance where they do not even have to win, where the bureaucrats come in and they say, ‘‘We need more money in order to 

come into compliance, in order for this to ever be completed,’’ and 

it becomes a funding mechanism. 

It is difficult for me to explain to Alabamians why bureaucrats 

are allowed to go to the Federal courts and make their budget requests, but that is what is happening. 

Now, there are a lot of people here who have a lot of expertise 

and they are talking about a lot of academic exercises. I am telling 

you, as the Attorney General of a State who is charged with complying with unwieldy and difficult consent decrees, our ability to 

comply, our ability to do what has been required of us is being 

hampered by the very consent decrees under which we operate. 

We have a consent decree to operate the Department of Mental 

Health in my State. We agreed to meet certain clinical standards—

33

clinical standards that continue to evolve, that continue to change, 

and the Federal courts continue to require the State of Alabama to 

alter its ability—its attempts to come into compliance with new 

and higher standards. 

We are not being asked to comply with the bargain that we 

struck. We are being asked to comply with a bargain that continues 

to be changed by the plaintiffs and by Federal judges and by court 

monitors and that the State is a helpless victim of. 

I am not here to say that consent decrees are not important. I 

am not here to say that governments do not have important duties 

to those who depend upon them. I am not here to say that when 

the States fail to act responsibly those who are injured should not 

have a recourse. Of course they should. But I am here to say that 

the State of Alabama is requesting your assistance and your relief 

in giving us the ability to run our own State, to act responsibly, 

and to take the Federal judiciary and to take a limited group of 

plaintiffs’ attorneys out of the process, to give us the ability to get 

relief that the citizens of Alabama expect when they elect a Governor he is going to be able to deliver to them. And right now he 

simply cannot do that. Right now, as Attorney General, I cannot do 

that. And that is wrong. 

Chairman SESSIONS. Thank you very much. I think you spoke 

eloquently of the reality that I hear. I was with a Governor just 

an hour—actually, 20 minutes before this hearing began from a 

State far distant from Alabama, and I asked her about it. I said 

I had to go to this consent decree hearing. She said, ‘‘That is great. 

They are driving us crazy. It is interrupting my ability to do my 

job.’’ So I think it is a reality. 

Senator Alexander? 

Senator ALEXANDER. I do not have any more questions, Senator 

Sessions. This is a well-informed and distinguished panel of a variety of views. It would be hard to imagine how we can get a broader 

perspective than we have had today on this subject. And so I would 

invite any of them—and I imagine you will do this before the hearing ends—if there are things that you wanted to say that you did 

not get to say or if there are points that you would like for us to 

consider or if there are specific changes in the bill that you think 

would make a difference, if you could submit those to Chairman 

Sessions, I am sure Senator Schumer and other members of the 

Subcommittee and then those of us like Representative Berman 

and I, Senator Pryor and others—I will certainly be glad to read 

them and consider them, and that will be an important part of the 

process. 

Chairman SESSIONS. Well, thank you so much. This was a spirited panel. It raises some important issues. Consent decrees are 

going to be and will remain an important part of the settlement of 

litigation in America. The idea that after 4 years that the plaintiff 

would have to justify the continuation of that decree does not strike 

me as eviscerating the power of a decree. Some decrees, in my 

view, will automatically need to be continued. Everybody would 

know that the time had not sufficiently run to complete the remedy. Some decrees may be clearly entitled to be terminated, in 

which case that would be done. Some decrees will require the judge 

34

to give some thought, well he or she should if they are now managing an agency of a State or a county or a city. 

We do not need to treat too lightly the concept that a consent decree is virtually the equivalent of a legislative enactment. It binds 

everybody under that decree—a school system, the entire mental 

health system, the entire Department of Transportation. These are 

bound by these decrees, and it is virtually the equivalent of a legislative act, except if we pass a legislative act this year, the next 

Congress can change it. If they get the same number of votes we 

had this year to change, they can change it. But these decrees are 

powerful. And it is dangerous. I fundamentally believe it is not a 

healthy thing when an unelected, lifetime-appointed judge who is 

not accountable for the operation of the Department of Transportation or the Department of Education is now substantially managing that, is approving a decree that mandates it for indefinite periods of time in the future. So the decrees are valid. The decrees 

can be good and healthy. But as the Supreme Court is telling us, 

we ought to be respectful and understanding that it does impact in 

a significant way our separation of powers, the entire nature of our 

democracy, because it is removing the power from the people and 

putting it into the hands of an unelected judge who is not accountable. 

So I think it is a worthy thing, Senator Alexander, that you have 

raised, you and Senator Mark Pryor. He was an Attorney General, 

of course, a Democratic Senator. He shares your concerns about it. 

Mr. King has expressed his as another Attorney General. 

I think we ought to listen to the good suggestions that have been 

made here, listen to the concerns that have been made here, and 

I hope that you will continue to pursue your view that perhaps this 

Congress can do something that would make this system work better. 

Do you have any final comments you would like to make? 

Senator ALEXANDER. No. The only thing that went through my 

mind a few times, everyone was talking about the short period of 

time that Governors and mayors serve. Most of us hope to serve 

longer than 4 years. Most of us do. The last mayor of Knoxville 

served 16 years. So the idea that suddenly—just to boil it all the 

way down, if I am running for Governor of Tennessee and I am 

elected and I want to improve the schools or fix the roads, and I 

persuade people to do that and they vote for me, then I think I 

ought to be accountable for that and have the authority to do that. 

To the extent I interfere with the constitutional or federally guaranteed rights of any citizen of Tennessee, then I ought to be hauled 

into court. Otherwise, I ought to be kicked out of office and accountable if I do not do my job. 

And so really we are talking about what set of decisions should 

be made and changed in the election process democracy and what 

set of decisions should be reserved for the independent third 

branch of Government, the judiciary. And it has always been a balance, and this has been a good discussion. 

Thank you. 

Chairman SESSIONS. Thank you very much. It has been a very 

interesting hearing. 

35

We will keep the record open one week to allow for any comments to be submitted to the record, and Senator Leahy has a 

statement for the record, and we will stand adjourned. 

[Whereupon, at 4:25 p.m., the Subcommittee was adjourned.] 

[Submissions for the record follow.]

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