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[Cabinet Council on Legal Policy 05/19/1983 and 06/20/1983]
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THE WHITE HOUSE
WASHINGTON
CABINET COUNCIL ON LEGAL POLICY
June 20, 1983
3:30 P.M.
Roosevelt Room
to acencies feer from Ab me sett't
directive involving atty:
AGENDA
1. Legal Fee Cap Proposal (CM#378)
2. Pornography Briefing (CM#383)
3. Coordination of Federal Law Enforcement Authorities
(CM#384)
1. freeze ail law my anth immed. (do not expand law inf anthis)
2. form law enf wky If re authorities
3. nec's back to CCLP Jten 30 days
of of no chance
liming of Legis ?
worth making polit "down" statemt side
still to be wkd out
= given Alt means 28 of doing
(admin /
CABINET COUNCIL ON LEGAL POLICY
June 20, 1983
PARTICIPANTS
The Attorney General, Chairman Pro Tempore
Secretary Watt
Edwin Harper
Loren Smith, Administrator, ACUS
Deputy Secretary McNamar
(Representing Secretary Regan)
Deputy Director Wright
(Representing Director Stockman)
Richard Hauser, Deputy Counsel to the President
William Niskanen
(Representing Chairman Feldstein)
Michael Uhlmann, Executive Secretary
Becky Norton Dunlop, Director, Office of Cabinet Affairs
For Presentation:
Edward Schmults, Deputy Attorney General
Additional Attendees:
Kenneth Cribb, Assistant Counsellor to the President
Nancy Risque, Special Assistant to the President for
Legislative Affairs
Lionel Olmer, Under Secretary of Commerce for International
Trade Administration
John Knapp, General Counsel, HUD
Jonathan Rose, Assistant Attorney General, Office of Legal
Policy
Ford B. Ford, Under Secretary of Labor, Designate
Dan McGovern, Acting Legal Advisor
THE WHITE HOUSE
WASHINGTON
CABINET AFFAIRS STAFFING MEMORANDUM
DATE:
6/17/83
NUMBER: 118765CA
DUE BY:
SUBJECT: Cabinet Council on Legal Policy - Monday, June 20, 1983
3:30 p.m. in the Roosevelt Room
ACTION FYI
ACTION FYI
ALL CABINET MEMBERS
Baker
Vice President
Deaver
State
Clark
Treasury
Darman (For WH Staffing)
Defense
Attorney General
Harper
Interior
Jenkins
Agriculture
Commerce
Fielding
Labor
HHS
HUD
Transportation
Energy
Education
Counsellor
OMB
CIA
UN
USTR
CCCT/Gunn
CCEA/Porter
CCFA/Boggs
CEA
CEQ
CCHR/Carleson
OSTP
CCLP/Uhlmann
ACUS
CCMA/Bledsoe
CCNRE/Boggs
REMARKS: The Cabinet Council on Legal Policy will meet on Monday, June 20,
at 3:30 p.m. in the Roosevelt Room.
The agenda is as follows:
Legal Fee Cap Proposal (CM#378) paper is attached
Pornography Briefing (CM#383)
Coordination of Federal Law Enforcement Authorities (CM#384)
(No paper will be distributed in advance of the meeting for the
last two agenda items.)
RETURN TO:
Craig L. Fuller
Becky Norton Dunlop
Assistant to the President
Director, Office of
for Cabinet Affairs
Cabinet Affairs
456-2823
456-2800
STATENT
OF
Office of the Attorney General
PRO
SEQUITURE
Washington, B. C. 20530
DONORA
JUSTITA
MEMORANDUM TO:
The Cabinet Council on Legal Policy
FROM:
William French Smith
Attorney General
was
SUBJECT:
Attorneys' Fee Cap Legislation
The Cabinet Council on Legal Policy must decide whether
the Administration should propose legislation to limit awards of
attorneys' fees against federal, state, or local governments
under federal law and, if so, what kind of "fee cap" should be
proposed.
I.
BACKGROUND
Currently, there are over 120 federal statutes that
permit courts to award attorneys' fees to private parties who
prevail against the federal government in litigation. In
addition, federal civil rights laws allow federal courts to
assess attorneys' fees against state and local governments in
favor of prevailing plaintiffs. Despite the number and breadth
of these fee-shifting statutes, only the Equal Access to Justice
Act provides any guidance to the courts as to how "reasonable
attorneys' fees" are to be calculated. In provisions of the
Equal Access to Justice Act, passed in 1980, Congress imposed a
maximum hourly rate of $75 an hour.
Under all other "fee-shifting" statutes, courts have
been free to set compensation rates according to their own
perception of the local market rates, the quality of the
attorney's work, and the risk factors incurred by the attorney in
undertaking representation. Though the formulas have varied
considerably, courts have often allowed hourly compensation
levels between $100 and $200 and have adjusted even these high
hourly rates upward by "multipliers" or bonus factors to reflect
exceptional performance or contingency/risk factors. In some
cases, this has resulted in exceedingly high hourly attorneys'
fee awards: by applying multipliers some courts have awarded fees
in the range of $300-$400 per hour. Excessive attorneys' fee
awards are a matter of considerable concern not only to the
federal government, but also to state and local governments who
have been forced to pay large attorneys' fee awards to plaintiffs
under federal civil rights statutes.
- 2 -
II.
LEGISLATIVE PROPOSALS
The Office of Management and Budget has drafted legisla-
tion to "cap" allowable attorneys' fees at reasonable hourly
rates. Drafts of this legislation have been discussed informally
within the Administration and with Congress over the past year,
but no Administration bill has been sent to Congress. OMB's
current draft bill includes provisions which would: (1)
set
the
cap for attorneys' fees charged against the government at the
average hourly pay level for senior government litigators (GS-15,
step 5) plus an additional 50% of this rate for overhead (for a
total rate of about $53 per hour); (2) limit the hourly compensa-
tion paid for attorneys who are salaried employees of a litigant
to their hourly salary rate plus an overhead factor; and (3)
impose the same limits on attorneys' fees assessed against state
and local governments.
Proposals to "cap" attorneys' fee awards against the
federal government, and state and local governments under civil
rights statutes, have generated considerable controversy and
opposition from civil rights and "public interest" groups over
the past year. Attorneys' fee cap proposals are thought by
public interest litigating organizations to strike at a vital
source of their financial support. Accordingly, these groups
have characterized fee cap proposals as "anti-civil rights" or
"anti-environmental" proposals meant to "defund" public interest
litigators. A proposal introduced last year to limit attorneys'
fees assessed against state and local governments under federal
civil rights statutes (by eliminating multipliers and bonuses)
had no success in Congress -- even though it was supported
strongly by the National Association of Attorneys General -
because it was successfully characterized by its opponents as
"anti-civil rights" legislation.
The Department of Justice agrees with OMB that there is
a real need for statutory guidance to the courts in this area.
Exploration by various sources, including officials at the state
level, reveals, however, little enthusiasm in the House of
Representatives for action on this type of legislation during
this Congress.
Consequently, the Department of Justice believes that
the bill should be approached, not as an entry into a
negotiation, but rather as a statement of the Administration's
position. Thus, we would hope that our version does not unneces-
sarily open us up to attack, particularly by civil rights and
environmental groups, as being obviously unreasonable. It is in
this spirit that our two options are put forward. Indeed,
perhaps the CCLP will wish to consider the question of whether
the timing of this bill makes sense for the Administration at
this point in the congressional cycle.
- 3 -
III.
AREAS OF DISAGREEMENT BETWEEN DOJ AND OMB
If CCLP decides to recommend introducing an
Administration bill, two questions concerning the specific
content of the bill must be decided: (1) whether the fee cap
should be tied to a government scale pay rate or simply set at
the Equal Access to Justice Act rate of $75, and (2) whether
hourly compensation to salaried attorneys should be limited to
their hourly rate plus an overhead factor.
A.
Issue 1 - Fee Cap Level
OMB has proposed setting the cap at the average level
for senior government litigators (GS 15, step 5) plus 50% for
overhead. This would amount to about $53 per hour. OMB believes
that the fee cap should be tied to a government pay rate because
many fee-shifting statutes are premised on the theory that people
who sue the government for public benefit purposes are acting as
"private attorneys general" and that compensation should, there-
fore, be consistent with rates paid to public attorneys. If $53
is deemed insufficient, OMB would, alternatively, propose that
the legislation allow an additional 20% profit factor to raise
the rate to about $64.
The Department of Justice proposes using the $75 per
hour level that has recently been endorsed by the Congress in the
Equal Access to Justice Act.
OMB Argues:
-
It is a better strategy to start with a lower figure to
leave room for negotiating on the Hill.
-
The $53 figure has a rational basis (tied to government
salaries), whereas $75 used by Congress in the Equal
Access to Justice Act is somewhat arbitrary. Its use
may make it more difficult to hold the line against
increases in the future.
-
The Equal Access to Justice Act is not a good analogue
because it has a higher threshhold requirement for
obtaining a fee award. Under that statute, awards are
precluded even where the government loses the case if
the government's action is "substantially justified."
DOJ Argues:
-
The $75 figure is more defensible than the OMB formula
because it has been endorsed recently by Congress in
the Equal Access to Justice Act and because it makes
allowance for contingency or risk factors (arising from
the fact that fee awards are available only to prevailing
parties) above and beyond an attorney's salary and
overhead expenses.
- 4 -
-
We should not approach the Congress with a low
"negotiating position," because the House of
Representatives will not give serious consideration to
such a proposal and will refuse to negotiate on the
bill.
-
The primary purpose of this legislation is to eliminate
the use of bonuses and multipliers. Unless the fee cap
is set at a level which seems reasonable and includes
an allowance for contingency factors above the
government pay rate, Congress may be induced to add an
amendment authorizing judges to use multipliers and
bonuses.
-
The "fee cap" found in the Equal Access to Justice Act
provides a good analogue for setting a broader, general
fee cap. Even though attorneys' fees are allowed under
the Equal Access to Justice Act only where the
government's position is "substantially unjustified,"
the calculation of the fee award is meant to be
compensatory, not punitive. Congress did not intend
that fees should be greater under EAJA than other
statutes, but imposed a $75 cap as its judgment of the
proper limit for reasonable attorneys' fees in the
broad range of cases to which EAJA applies.
B.
Issue No. 2 -- Salaried Attorneys
OMB has proposed that, where litigants use in-house
attorneys and the $53 fee cap level is "significantly greater"
than the litigant's actual attorneys' fee costs, fee awards
should be limited to the actual costs, with an allowance for
overhead. This limitation would apply to organizations in
proceedings under the Equal Access to Justice Act. The rationale
for this proposal is that attorneys' fee awards should be related
to actual costs and should not confer a windfall on litigants.
This limitation would have a significant impact on public
interest organizations -- who often litigate with low-paid staff
attorneys -- and could be criticized as an effort to defund
public interest litigators.
If it is deemed advisable to mitigate such criticism,
OMB would, alternatively, allow an additional 20% factor for
profit, and expand the coverage of the provision to include all
salaried attorneys, including associates in law firms. If the
limitation were applied to all salaried attorneys, it could not
be criticized as aimed primarily at public interest litigators.
The Department of Justice believes that neither version
of this limitation should be included.
OMB Argues:
-
Such a limitation in one or the other formulation is
necessary to avoid windfalls to organizations using
salaried attorneys.
- 5 -
DOJ Argues:
1.
With respect to the first version applying only
against in-house counsel of a litigant:
-
The limitation would appear to bear most heavily
on public interest groups and thus generate
excessive controversy.
-
Organizations with staff attorneys could often
circumvent the limitation by restructuring their
participation relationships with counsel in
litigation. For instance, a public interest
organization could avoid this provision by deter-
mining not to appear itself as a party litigant
represented by its own attorneys but to represent
another party with its attorneys.
2. With respect to the second version of this
limitation applied to all salaried attorneys:
-
Expansion of the limitation to salaried law firm
attorneys could fail to silence the objections of
public interest organizations while increasing the
objections of private law firms.
-
The limitation might draw strong opposition from
the small business interests that the Equal Access
to Justice Act was enacted to protect.
-
The limitation, focusing on the hourly rates of
private attorneys, could generate litigation over
what the hourly rate of an individual attorney is
(when benefits are calculated) and what consti-
tutes an amount "significantly in excess" of that
rate.
OFFICE
EXECUTIVE OFFICE OF THE PRESIDENT
R
CELLING
OFFICE OF MANAGEMENT AND BUDGET
SECURITY
WASHINGTON, D.C. 20503
MEMORANDUM
June 20, 1983
To:
Joe Wright
Fred Fielding
Ken Cribb
Jim Cicconi
Mike Uhlmann
Nancy Risque
From:
Mike Horowitz Mild
Subject:
Fee Reform Bill
On late Friday, in a further effort to close the gap with Justice
on a jointly supportable bill, we proposed the following
revisions, intended to address all of the concerns raised by
Justice:
fee cap for civil cases raised to $75;
all CJA fees doubled;
in civil cases only, fee cap for salaried attorneys at
their hourly rate (annual salary divided by 2,080) plus
100% overhead allowance (raised from draft's 50%) plus 20%
"profit factor" called for in Judge Wilkey's dissent in
the Copeland case.
I am now hopeful that all parties can happily support a fee
reform bill which: has the support of the overwhelming number of
state Attorneys General, doubles CJA fees, and corrects a set of
extraordinary abuses now prevalent, some of which are set forth
in Joe Wright's CCLP memo.
I should be hearing from Justice this morning and will continue
to make every effort to assure a CCLP meeting at which all
parties are in agreement and are prepared to discuss tactics and
processes by which we can move the bill as quickly and as far as
possible.
THE WHITE HOUSE
WASHINGTON
CABINET AFFAIRS STAFFING MEMORANDUM
DATE:
6/17/83
NUMBER: 118765CA
DUE BY:
SUBJECT:
Cabinet Council on Legal Policy - Monday, June 20, 1983
3:30 p.m. in the Roosevelt Room
ACTION FYI
ACTION FYI
ALL CABINET MEMBERS
Baker
Deaver
Vice President
State
Clark
Treasury
Darman (For WH Staffing)
Defense
Attorney General
Harper
Interior
Jenkins
Agriculture
Fielding
Commerce
Labor
HHS
HUD
Transportation
Energy
Education
Counsellor
OMB
CIA
UN
USTR
CCCT/Gunn
CCEA/Porter
CCFA/Boggs
CEA
CCHR/Carleson
CEQ
OSTP
CCLP/Uhlmann
ACUS
CCMA/Bledsoe
CCNRE/Boggs
REMARKS: The Cabinet Council on Legal Policy will meet on Monday, June 20
at 3:30 p.m. in the Roosevelt Room. Attached is an additional
paper on Legal Fee Cap. (CM#378) The first paper was distributed
to you earlier today.
RETURN TO:
Craig L. Fuller
Becky Norton Dunlop
Assistant to the President
Director, Office of
for Cabinet Affairs
Cabinet Affairs
456-2823
456-2800
OF THE
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE
1
BUDGET
BLUND
OFFICE OF management AND BUDGET
WASHINGTON, D.C. 20503
June 17, 1983
MEMORANDUM
TO:
THE CABINET COUNCIL ON LEGAL POLICY
FROM:
Joe Wright
SUBJECT: Attorney Legislation
1. Justice and OMB agree that courts have generally abused their
broad discretion in providing awards of attorney's fees under
federal fee-shifting statutes, and that there is a real need for
statutory standards for awards of attorney's fees.
2. The disagreements between Justice and OMB regarding the two
provisions in the proposed bill are well summarized in Mike
Uhlmann's memorandum. Further discussion through the A-19
process and otherwise should result in a common position. The
primary point, however, is that the Administration should take
the initiative and submit a fee cap bill now.
3. Over 100 fee-shifting statues, other than the Equal Access to
Justice Act, provide for awards of "reasonable attorney's fees"
without standards for courts to follow in determining such
awards. As the Attorney General notes in his memorandum, courts
are now frequently awarding attorney's fees at hourly
compensation rates of between $100 and $200, and have often
adjusted these awards by "multipliers" resulting in some cases in
fee awards in the $ 300-$400 per hour range.
4. In all, the federal fee-shifting statutes operate to
oversubsidize attorneys who litigate in civil cases not only
against the federal government but also, in a broadening variety
of cases, against State and local governments.
5. While civil attorneys have increasingly used federal
fee-shifting statutes as a means of obtaining excessive awards
against federal, State, and local government defendants, defense
attorneys for indigent criminal defendants have been limited to
maximum hourly compensation of $20 for time out of court and $30
for time in court and total ceilings, such as $1,000 for a felony
case, under provisions of the Criminal Justice Act ["CJA"] that
have not been changed since 1970.
6. The proposal for substantial fee increases for Criminal
Justice Act representations converts the bill from a fee cap into
a fee reform bill. This should result in significant support
within the legal community.
-2-
7. While the proposed bill will be vigorously attacked by
various "public interest" groups, it is directed toward what are
really taxpayer and federalism issues. In times of acute fiscal
austerity, the federal, State and local government taxpayers
cannot afford and should not be required to finance private
attorneys at excessive rates which greatly exceed what the
government pays its own attorneys. Furthermore, it is
inappropriate for the federal government to impose statutory
requirements on State and local governments to pay awards of
attorney's fees, without providing standards to control such
awards. It is entirely consistent with the President's program
for the Administration to introduce a bill to set standards on
the amounts to be paid by taxpayers for attorney's fees, rather
than to continue to vest open-ended discretion in the courts.
The bill reflects the Administration's concern about
oversubsidization of attorneys at taxpayers' expense and should
be attractive to the larger constituency of persons who share
this concern and who are concerned about rising legal costs in
general.
8. The following are a few examples of recent abuses:
O In the leading case in the D.C. Circuit, the Court awarded
$160,000 for the work of two young associates of the firm of
Wilmer, Cutler and Pickering although the relief received by
the clients only amounted to some $33,000 in backpay, promotion
of four employees and approval of an Affirmative Action Plan
developed internally by DOL. On appeal -- where the sole
question was the reasonableness of the $160,000 fee award --
the attorneys sought another $100,000 for handling the fee
award litigation. The fee award was settled for $75,000,
resulting in a total award of $235,000 to the attorneys.
O Currently pending in the Office of the U.S. Attorney for the
District of Columbia are two employment discrimination cases in
which requests have been made by downtown Washington law firms
for attorney's fees in excess of $4.3 million and $1.6 million,
respectively.
O In February, 1982, a public interest group, the Greater Los
Angeles Council on Deafness, Inc., brought a successful lawsuit
challenging government discrimination against the handicapped
by failing to require a Los Angeles public television station
to provide sign language interpreters for deaf viewers. The
Court found the reasonable hourly rate for the plaintiff's
attorney to be $175 per hour, and awarded a bonus multiplier
factor of 2, resulting in an hourly rate award of $350 and a
total fee award of $436,000.
-3-
O A recent award of nearly $2 million was made to two Minneapolis
law firms who won a federal class action sex discrimination
case against the University of Minnesota. The court awarded
$375 per hour to one firm and $240 per hour to the other. Both
hourly rate awards were triple the firms' normal hourly
charges.
O In Keith V. Volpe, (C.D. Cal. 1980), the court applied a
multiplier of 3.5 to reasonable hourly rates of from $25 to
$117.50, for effective hourly rates of from $87.50 to $411.25,
and a total award of $2,204,535 in attorney's fees.
o In Regina V. Dalsheim, (S.D.N.Y.), the court rejected the
prisoner's numerous challenges to the condition of the prison
hospital. The court did direct the prison to install an
electric buzzer over the prisoner's bed, and, in light of that
incidental relief, the court awarded $13,383.22 in attorney's
fees.
O In a lawsuit challenging prison conditions in Texas, the court
awarded attorney's fees to 13 attorneys at rates ranging from
$45 per hour to $150 per hour, and awarded a bonus multiplier
factor of 2, resulting in effective hourly rates of $90 to
$300, and a total fee award which exceeded $1.66 million.
o In Oniskor, Logan and Dock V. Milliken, (D. Utah 1980), each of
three mentally ill prison inmates received $500 while their
three lawyers received approximately $22,000 in fees.
o The D.C. Circuit has awarded attorney's fees to unpaid law
students and to pro se prisoners who obtained documents in
suits under the Freedom of Information Act.
o The growing size of the fee award industry can be seen from the
federal fee award treatises now beginning to appear; there is
also a bi-monthly Harcourt Brace publication, "Federal Attorney
Fee Awards Reporter." A D.C. law firm recently sent out a
general mailing to the bar soliciting retention on the basis of
its special expertise in obtaining high attorney fee awards
against the government. Large law firms now view what had
previously been pro bono work for young inexperienced
associates as a lucrative form of practice.
9. There are good reasons why now is the time for the
Administration to introduce the bill:
o There is support in the Senate for an attorney's fee bill.
Senator Hatch's staff estimates that his Subcommittee will pass
the bill with a clear majority, and that the full Committee
vote will be close but winnable with Administration support.
-4-
Commitments have been made to various State AG's that we would
support a fee reform bill capping civil fee awards against
State and local governments.
Given considerable pressure for CJA fee increases, the draft
bill's chances will be materially improved. Without our bill,
CJA increases might pass this session and thereby sharply limit
any future prospect for Congress to take up an overall fee
reform bill limiting civil awards.
If the attorney's fees issue is seen as an overall reform and
taxpayer issue, the Administration can and should do reasonably
well. There was considerable press following the inclusion of
an attorney's fees initiative in the President's FY 83 budget.
Given its presentation as an omnibus approach to attorney's
fees, press treatment was fair, indeed, quite favorable.
While, as the Attorney General states, the House poses serious
problems, Senate enactment of a bill will trigger many options
to force House action. (House interest in CJA increases
enhances this prospect.) At the very least, a Senate passed
bill will serve as a model for amendments to fee-shifting
provisions in individual statutes as they are reviewed by
Congress.
The bill represents good and important public policy. If the
Reagan Administration can't support a modest fee reform bill
backed by a bi-partisan coalition of State AG's (as well as
business and taxpayer groups), who ever will?
10. The time is ripe for the Administration to submit
legislation to set standards for all attorneys who litigate
against the government under federal civil or criminal statutes.
As a pro-taxpayer/anti-windfall to attorneys initiative, and one
that increases CJA awards, the proposal is sound. The matter
should no longer be left to the courts.
Ferrad Biller
cc LP
Document No.
WHITE HOUSE STAFFING MEMORANDUM
DATE: May 12, 1983 ACTION/CONCURRENCE/COMMENT DUE BY:
SUBJECT: MEETING OF THE CABINET COUNCIL ON LEGAL POLICY - INTERCIRCUIT
TRIBUNAL PROPOSAL -- With the President, May 19, 1983 2:00 p.m.
ACTION FYI
ACTION FYI
VICE PRESIDENT
GERGEN
MEESE
HARPER
BAKER
JENKINS
DEAVER
MURPHY
STOCKMAN
ROLLINS
CLARK
WHITTLESEY
DARMAN
P
ISS
WILLIAMSON
DUBERSTEIN
VON DAMM
FELDSTEIN
BRADY/SPEAKES
FIELDING
ROGERS
FULLER
BAROODY
SMALL
Remarks:
Action assignees are invited. Please inform Patsy Faoro (x2800) in
the Office of Cabinet affairs if you will attend.
Attached is a paper on the Intercircuit Tribunal Proposal. This issue is
scheduled for a Cabinet Council on Legal Policy meeting with the President
May 19, 1983. Please review the attached paper and submit comments
to the Office of Cabinet Affairs by Noon, Tuesday May 17, 1983. Richard G. Darman
Assistant to the President
(x2702)
Response:
EXECUTIVE SUMMARY
Some have argued that in recent years the workload of the
Supreme Court has become SO heavy that it threatens the
ability of the Court to discharge its functions in a timely
manner.
The Chief Justice and other members of the Court have
publicly recommended the creation of an intercircuit tribunal
as an adjunct of the Supreme Court. A number of bills have
been introduced that would create such a tribunal, and while
the details of these bills vary, in general they would create
for a five-year trial period a national appellate court below
the Supreme Court that would hear cases referred to it by the
Supreme Court and issue nationally binding decisions.
An internal Department of Justice committee considered the
various proposals and, with Brad Reynolds dissenting, decided
to recommend establishing an experimental intercircuit
tribunal whose judges would be sitting circuit court judges
selected by the Chief Justice with the approval of the
Supreme Court.
Issues
The case for the intercircuit tribunal is set forth in the
Justice Department committee's memo by Paul Bator and is based
largely on statistical analyses of the Supreme Court's workload.
However, the proposal raises a number of more profound philo-
sophical and policy issues, some of which are touched upon in
Brad Reynolds' "reservations" attached to the Bator memo:
To a large extent, the Supreme Court may be the author of its
own problems. Recent liberal decisions by the Court have
greatly expanded judicial power and the judiciary's workload
by expanding access to the federal courts, habeas corpus
proceedings, private rights of action, Section 1983 suits,
supervising state criminal proceedings, and proliferating
multiple and inconsistent judicial opinions that provide no
guidance to lower courts.
One of the few limits on the power of the federal judiciary
today is the limited nature of judicial resources. In many
cases, it is the prospect of a judicial overload that gives
liberal justices pause about expanding federal causes of
action. Increasing judicial resources may simply exacerbate
the current tendency toward judicial aggrandizement. It does
not appear that the Department of Justice committee
considered this issue in any detail.
Some critics of the Court have asked how a body that takes
two-and-a-half months of vacation a year can be said to be
overworked.
-2-
Giving nationwide decision-making power to judges who were
appointed and confirmed for regional circuit courts of appeal
arguably infringes the prerogatives of the President and the
Senate; attention should be given to the constitutional
arguments for Presidential appointment of tribunal judges.
Any tribunal appointed by the Chief Justice with approval of
the full Supreme Court would lead either to a polarized
tribunal ( one judge to satisfy Marshall, one to satisfy
Rehnquist, etc.) or to a bland one tending toward mediocrity
as a means to offend no one. Worse, if a strong working
majority develops on the Supreme Court at any time in the
future, the intercircuit tribunal could be used as an arm to
augment Supreme Court power and further enforce the policy
preferences of the Supreme Court majority.
THE WHITE HOUSE
WASHINGTON
May 13, 1983
MEMORANDUM FOR JAMES A. BAKER, III
FROM:
Jim Cicconi
f
SUBJECT:
Intercircuit Tribunal Proposal
For your information:
As you know, the Chief Justice has proposed a type of inter-
circuit tribunal which would, among other duties, resolve
conflicts between circuit courts. The objective is to par-
tially relieve the Supreme Court's case overload.
After an internal committee review, DOJ had planned to tes-
tify in support of this proposal several weeks ago. However,
when the matter was brought to Ed Meese's attention, he ordered
that the testimony not be cleared. At the time, it was felt
that the proposal should be given more thorough consideration
within the Administration than was afforded by the DOJ com-
mittee's review.
Various forms of Burger's proposal have been introduced in the
Congress. One by Kastenmeier, which is typical, would set up
nine judges to serve for five-year terms; these would be ap-
pointed by the Supreme Court from among present circuit
court judges.
Papers are now being circulated arguing the pros and cons.
Having reviewed the various points involved, I feel we should
be reluctant to endorse this proposal. I could detail various
reasons, but mainly, I do not feel a convincing case has been
made that such a tribunal is needed. Even if one accepts the
premise that the Supreme Court is severely overloaded (and
many dispute this), a major structural change such as this
is not justified by workload alone when there are simpler
alternatives (abolition of diversity jurisdiction, for exam-
ple). Brad Reynolds, who disagrees with the DOJ committee's
recommendation, also makes a convincing argument that work-
load pressures, which are due in no small part to the Court's
expansion of federal causes of action, will serve as a curb
on further judicial activism.
Plans are for CCLP to discuss this subject with the President
on May 19. However, Fred Fielding and I talked with Fuller
this morning and pointed out that DOJ will be testifying on
Kastenmeier's bill May 18; thus, some adjustments will have to
be *made.