Robert A. Katzmann

Our Courts and Our Congress

VTR Date: April 14, 2009

GUEST: Hon. Robert A. Katzmann


GUEST: Hon. Robert A. Katzmann
VTR: 04/14/09

I’m Richard Heffner, your host on The Open Mind.

And my guest once again today is Federal judge Robert A. Katzmann of the distinguished United States Second Circuit Court of Appeals.

Now, last time we talked about Judge Katzmann’s more-than-judicial crusade to summon up the legal profession’s various resources to bolster a faulted immigration court system where, as a recent New York Times article on the Judge noted, “No defendant has the right to a court-appointed lawyer, and some of the most vulnerable end up in the hands of fly-by-night operators who bungle cases wholesale”.

This time, however, I want to focus instead on my guest’s overall legal career, characterized largely by a scholarly focus on more-removed-from-the-fray constitutional matters,
particularly on relations between Congress and the Courts.

Indeed, Judge Katzmann’s noted “Courts and Congress”, a joint study of The Brookings Institution and The Governance Institute reflects his training in the law, in political science, and in the actual workings of judicial-congressional relations.

So, I trust he won’t consider me flippant if I begin by asking what happened to that OTHER branch of American government, which lately, indeed, seems to loom ever larger, as in the seminal Bush/Cheney concept of a “Unitary Executive” – one in which greater and greater powers are presumed to reside, both in war and in peace, in the Office of the President of the United States, rather than in the Congress and the Judiciary. What happened to the White House?

KATZMANN: Well, the … you’re quite right that the Presidency looms large in our constitutional system of, of governance. But an institutional relationship that has been little explored but is very important is that relationship between Congress and the courts.

Indeed, the way that I got involved in this project was that Judge Frank Coffin, who was Chair of the Committee on the Judicial Branch of the Judicial Conference, a committee that was charged with looking at relations between the branches asked if I would assist in creating an agenda for research in action to approve relations between the branches.

Judge Coffin has been a member of Congress and there were a number of members … judges … on that committee who themselves had been former members of, of Congress … such as Abner Mikva of, of, of Illilnois.

And if you look at the relations between those two branches, one is struck by how much influence the Congress has on the, on the Courts. The Congress determines the number of judges that there should be in the Federal system.

The Congress determines the appropriations, the budget for the … for the Courts. And it might interest you to know, and surprise you … our viewers to know that the Courts themselves receive only two-tenths of one percent of the Federal budget. A very small amount.

So Congress affects resources. It affects the procedures of the courts. Every time that the Congress passes a law which requires judicial interpretation … the Congress is affecting the work life of the, of the judicial body.

Yet the relationship between these branches has been … had been very little examined and the gulf between the branches because of the institutional distance between the branches had fostered a sense of estrangement and, and friction. And certainly little understanding.

And so it was in that context that I became involved in this effort to explore relations between, between the, the …between the branches.

HEFFNER: You know you, you write about … you talk about the gulf and you write about the gulf in this quite fascinating volume and … you talk about communications between those two branches as essential … better communications. You feel strongly about that, I gather.


HEFFNER: … that they don’t fully understand or communicate with each other.

KATZMANN: Yes I do. I do. And, and if you … if you harken back to a time before the 1930s … the arguments in the Supreme Court were held in a chamber that was within the capitol. And in that period of … in that long period of time you would have judges, you would have lawyers, you would have legislators that would at least see one another from time to time in interaction.

You would have Daniel Webster arguing a case in the Supreme Court and then going back to his legislative responsibilities, all within the same physical complex.

With the building of the Supreme Court …that beautiful building, that marble palace as it is sometimes called promoted by William Howard Taft, a former President, who as Chief Justice thought the Supreme Court should have its own building … as it should … a psychic distance, I think, developed that might have always been there to some extent, but was formalized.

And when you don’t have communications and understanding of each other’s work ways … judges need to understand the legislators’ work ways, the legislators need to understand what judges responsibilities are. That breeds misunderstanding of each other’s roles and a kind of suspicion of, of, of each branch.

HEFFNER: You know I couldn’t help but think as I read your expressing these thoughts in somewhat different words in your book … couldn’t help but think of the husband and wife who are having troubles and the therapist who says, “it’s a problem in communications”, when, indeed, if they were to communication with each other they’d be saying, “I hate you”. And the other one saying, “I hate you.

Aren’t you talking here about a necessary product of the separation of powers and the balance of powers in which the Founders really thought it was a wise thing to have not such comfortably close relations as you describe before the new Supreme Court building went up?

KATZMANN: You, you’re quite right that the Founders envisioned constructive tension among the branches of government.

That out of that constructive tension, that separation of powers … would yield a system of ordered liberty.

HEFFNER: Or chaos … as the case might be.

KATZMANN: Or chaos … as, as, as … as it, as it may be. But as, as Richard Neustadt, a scholar of the Presidency, noted in 1960, I think, in, in Presidential Power that the Constitution created a system of, of separated powers, but not separate institutions.

That is to say that the institutions of government, while having their own prerogatives and responsibilities were not to, to proceed in isolation. They would always been interacting, that if there was separateness to some extent, there would also be interdependence.

So certainly, inevitably, there will be tensions when the Courts interpret legislation and say “This legislation is unconstitutional” … that can’t be solved by the … the, the unhappiness that the Congress might feel is not going to be solved by “Let’s reason together. Let’s sit down and, and break, break bread.”

But if there is an understanding that in our system that the branches do have these certain responsibilities and that it’s not personal, when the Courts reach a certain decision in a certain way, but simply interpreting the law as they, they see their responsibilities, then the Congress might have a, a better appreciation for the, the court’s responsibilities.

And similarly if, if the … if, if judges had a better understanding of the legislative process and the difficulties that legislatures present, that might make them more sensitive as their interpreting statutes to get a sense of “what was Congress’ meaning” in a very complex structure.

HEFFNER: Is, is … am I wrong then to assume that your primary concern here was to have the Congress better understand the courts and, indeed, and you’re the one who offers the statistic about the … about the budget of the court system … the Federal court system.

I, I, I read here, I sense here a greater concern that Congress understand and respect the problems that are faced by the Courts, rather than so much as the other way around. Is that unfair?

KATZMANN: I think that I should, if I were to beef up the volume I, I would want to certainly also make sure that … I think that there is a problem in terms of Courts understanding Congress as well.

And …but it’s certainly the case that if you look at the power in terms of who decides the budget, who decides the number of judges that there are in the branches, who passes the laws that affects the Courts … it is, it is, it is the Congress.

The, the courts developed in, in recent years through the Administrative Office of the Courts lead by its Director James Duff have, have developed I think some very good working relationships within the Congress. And I think that …hopefully that will augur well for the future as, as, as we … as things develop.

But, but certainly from the perspective of Members of Congress there is often this view that judges don’t understand their lives. That judges have lifetime appointments, they don’t have to run for re-election.

HEFFNER: Does that stick in the craw of the frequently elected, re-elected, re-elected …

KATZMANN: I think that …

HEFFNER: … Congress people.

KATZMANN: I think for, for understandable reasons, for members of Congress who have to have two residences … the ones in their district, the ones in Washington. Who always have to, who always have to raise money … I think that as they look at the judiciary, I think for quite, very human reasons, they see a branch of government where you can’t be fired, you have your, your job for the rest of your lives, so what are you complaining about?

And I think the, the … the think the … in part, what the judiciary should … needs to do is show its understanding of the pressures that legislators are, are under as well.

HEFFNER: Well, let me ask that question that you just put in the mouths of the Congress people … what are you complaining about? What is the judiciary complaining about?

KATZMANN: I think that there are a variety of concerns that the judiciary has. One is increasing volume of cases.

HEFFNER: Thanks to the laws passed by the national legislature.

KATZMANN: By the national legislature. And certainly the courts will interpret … will do what’s asked of them. The Congress has every responsibility and prerogative to pass these laws. But at the same time, there have to be resources to deal with … by the judicial branch … to deal with these, these cases. So, when you have spiraling caseloads. That might mean that you need to add more judges to the system.

Justice isn’t, isn’t like manufacturing widgets. It’s about achieving a fair result. It’s not just about efficiency. And fairness can take time, it requires deliberation.

And in that circumstance you want to make sure that the courts are not so overloaded per judge so that justice will, will, will suffer.

HEFFNER: Are the courts, by and large, in your estimation, overloaded?

KATZMANN: I think it depends upon the, the circuit. Different parts of the country have different caseloads. In our court, the 2nd Circuit, I think yes … we’re doing the best we can with a very high volume docket.

But if you, if you … if you compare the cases decided per judge 25 years ago versus today … you will see that there are many more cases decided per judge than there were 25 years ago.

And I think we have to be sensitive to be sure that in the effort to achieve justice that we make sure that the judges have the, the kind of time that’s necessary to look at each case with the thoroughness that the case deserves.

And I think we are, we are doing that. But I worry about the not-too-distant future. I think the future may almost be here.

HEFFNER: With our burgeoning population, has there been a commensurate increase in the number of judges?

KATZMANN: There hasn’t been an increase in the number … commensurate increase in the number of judges over the last several years.

And there are bills that I think will … that will be introduced in this Congress to increase the number of judges and I know that, that, that Senator Leahy and Senator … and Representative Conyers have been supportive of such measures and in the past their Republican counterparts have been sympathetic, but the legislation hasn’t passed and so I’m, I’m hopeful that in this Congress that some attention will be paid.

HEFFNER: I suspect if we had a non-partisan President of the United States, executive branch that would appoint-nominate at least-the judges that it would be easier to achieve.

But let me, let me … I was fascinated in the comments on your book by our mutual friend, the late Senator Daniel Patrick Moynihan. He writes about your book, very complimentary terms … “There is no such book as this. Even as there is no such scholar as Bob Katzmann. He has studied the relations of the Courts and the Congress from the beginning of the Republic and in this age. He has actively participated in them. Producing in Franklin’s lovely phrase …”useful knowledge”. We are in much need of this just now, the condition of the American courts grows problematic. Too large and too broad a caseload. Too little support. In these matters Presidents are of small consequence. Matters will be resolved in the interstices of the relations between the courts and the Congress. Now, at least, we have a guide and a counselor.”

Maybe that’s what led me to that first question about where is the President? Are Presidents really of such small consequence?

KATZMANN: I think Presidents can play an important role in, in terms of supporting the judiciary as, as a vital, independent branch.

And certainly in those circumstances where there is unified government as between the executive and the legislative branches, a President who is supportive of the judiciary can also fortify the, the Congress in providing the judiciary with the kind of support that it needs.

But certainly Presidents are, are important. Generally speaking Presidents have been supportive where there has been an issue in terms of the … of judicial resources … it really comes with the … in, in the Congress.

HEFFNER: Now this book more than a decade ago. How would you change it today?

KATZMANN: I would change it in, in a few ways, I, I guess. The first part of the book dealt with the confirmation process …


KATZMANN: And it was focused mostly on the Supreme Court confirmation process. And I observed that with respect to the other appointments … lower court appointments, Court of Appeals, and, and District Courts … that generally the Congress, the Senate didn’t spend much of its attention. And that clearly has changed over time in the last 10 years. Certainly it’s changed with respect to the Courts of Appeals.

Far greater attention is given in the confirmation … in the confirmation process to the Court of Appeals.


KATZMANN: I think that there is a recognition that in just about 99% of the cases the Courts of Appeals are the final arbiters. Since the Supreme Court hears less than 1% of the cases that are appealed to it.

And as Courts of Appeals have rendered decisions on salient public … salient issues of public policy and social policy … like abortion, death penalty … there, there’s been more focus, I think on the, on the Courts of Appeals.

Another thing that I would, I think I would have to update is the, the role of the media. Now you have a 24 hour new cycle and you have constant coverage, of, of judicial … controversial judicial decisions … whereas before you might have seen an occasional story in the Times or whatever paper of record or certainly you would have on major decisions like Roe v. Wade you would have lots of controversy.

HEFFNER: But how do you feel that, qualitatively, that has changed? Things for the courts?

KATZMANN: I think it doesn’t change things for the way that judges do their, their jobs. The judges will focus on the cases at hand. But what I think it does is it makes Congress more attentive to what the Courts do because their various constituencies who are concerned about those issues are in touch with the, with the … with their members.

Linda Greenhouse did a story … actually I believe it was a Law Review article … I think it was in the Yale Law Journal some time ago where … in the last 10 years … where she talked about how interest groups now get in touch directly with the media about cases that are of interest. That’s a relatively new development. And, and so I think that the changing nature of the confirmation process is one that I would, I would give more attention to.

I think as to relations between the branches per se, that I’m certainly … up until the last couple of years certainly, it seemed that there were more tensions between the branches. There were more hearings being held about the way the courts were doing business.

There were calls for the creation of an Inspector General by the Congress, by certain members of the Congress to examine how the Courts were, were doing their, their jobs. There were, there have been hearings about the way particular judges conducted their operations. All that bespeaks a greater focus on the … by the Congress on the Courts that that was … even more than, than when I was writing, writing the book.

Now some of that may change with, with a new Congress. But all of which is to suggest that the Courts have to understand that when Congress has a criticism of the Courts, that Congress has certain legitimate roles. They have a legitimate role in figuring out how the courts spend resources. They have a, a legitimate role in, in monitoring generally the operations of the courts.

But the Congress has a … has to certainly understand that the Courts have constitutionally assigned roles in our society.

HEFFNER: And that’s the point at which I say our time is up. So it’s clear that we’ll have to come back, if not soon, then at length to see what does change with this new Congress. Judge Katzmann thank you so much for joining me today.

KATZMANN: It was a privilege.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. If you would like a transcript of today’s program, please send $4.00 in check or money order to The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150.

Meanwhile, as an old friend used to say, “Good night and good luck.”

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.