Public papers of Supreme Court justices : assuring preservation and access : hearing before the Subcommittee on Regulation and Government Information of the Committee on Governmental Affairs, United States Senate, One Hundred Third Congress, first session

134 Pages·1994·5 MB·English

by  United States. Congress. Senate. Committee on Governmental Affairs. Subcommittee on Regulation and Government Information

in
/ S. Hrg. 103-847
PUBLIC PAPERS OF SUPREME COURT JUSTICES:
ASSURING PRESERVATION AND ACCESS
Y4.S 74/9: S. HRG. 103-847
Public Papers of Suprene Court Just...
HEARING
BEFORE THE
SUBCOMMITTEE ON REGULATION AND
GOVERNMENT INFORMATION
OF THE
COMMITTEE ON
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED THIRD CONGRESS
FIRST SESSION
JUNE 11, 1993
Printed for the use of the Committee on Governmental Affairs
U.S. GOVERNMENT PRINTING OFFICE
69-855cc WASHINGTON : 1994
ForsalebytheU.S.GovernmentPrintingOffice
SuperintendentofDocuments,CongressionalSalesOffice,Washington,DC 20402
ISBN 0-16-046272-X

in
J S. Hrg. 103-847
PUBLIC PAPERS OF SUPREME COURT JUSTICES:
ASSURING PRESERVATION AND ACCESS
Y 4. S 74/9: S. HRG. 103-847
Public Papers of Suprene Court Just...
HEARING
BEFORE THE
SUBCOMMITTEE ON REGULATION AND
GOVERNMENT INFORMATION
OF THE
COMMITTEE ON
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED THIRD CONGRESS
FIRST SESSION
JUNE 11, 1993
Printed for the use of the Committee on Governmental Affairs
U.S. GOVERNMENT PRINTING OFFICE
69-«55cc WASHINGTON : 1994
ForsalebytheU.S.GovernmentPrintingOffice
SuperintendentofDocuments,CongressionalSalesOffice,Washington,DC 20402
ISBN 0-16-046272-X
COMMITTEE ON GOVERNMENTAL AFFAIRS
JOHN GLENN, Ohio, Chairman
SAM NUNN, Georgia WILLIAM V. ROTH, Jr., Delaware
CARL LEVIN, Michigan TED STEVENS, Alaska
JIM SASSER, Tennessee WILLIAM S. COHEN, Maine
DAVID PRYOR, Arkansas THAD COCHRAN, Mississippi
JOSEPH LIEBERMAN, Connecticut JOHN McCAIN, Arizona
I.
DANIEL K. AKAKA, Hawaii
BYRON L. DORGAN, North Dakota
Leonard Weiss, StaffDirector
Franklin G. Polk, Minority StaffDirector and ChiefCounsel
Michal Sue Prosser, ChiefClerk
SUBCOMMITTEE ON REGULATION AND GOVERNMENT INFORMATION
Joseph I. Lieberman, Connecticut, Chairman
SAM NUNN, Georgia THAD COCHRAN, Mississippi
CARL LEVIN, Michigan WILLIAM S. COHEN, Maine
BYRON L. DORGAN, North Dakota JOHN McCAIN, Arizona
John Nakahata, StaffDirector
David McMillen, Professional StaffMember
James Lofton, Minority StaffDirector
(ID
CONTENTS
Openingstatements: Pase
Senator Lieberman
Senator Cochran 4
WITNESSES
Friday, June 11, 1993
Hon. James H. Billington, Librarian ofCongress 5
E. Barrett Prettyman, Jr., Attorney,Washington, DC
Dennis J. Hutchinson, Editor, The Supreme Court Review 19
Anne R. Kenney, President, Society ofAmericanArchivists .. 22
Jane E. Kirtley, Executive Director, The Reporters Committee for Freedom
ofthe Press 25
Alphabetical List of Witnesses
Billington, Hon. James H.:
Testimony °
Hutchinson, DennisJ.:
Testimony **
Kenney, Anne R.: ^
Testimony
Kirtley, Jane E.:
Testimony ^5
Prettyman, E. Barrett, Jr.:
Testimony 1"
APPENDIX
Statement of Support for the Library of Congress Decision to Open Access
to the Papers ofJustice Thurgood Marshall 37
Statement with attachments submitted for the record by Cynthia Harrison,
Ph.D., Chief, FederalJudicial History Office 39
Letter dated June 7, 1993 from William H. Rehnquist, ChiefJustice, Supreme
Courtofthe United States to Senator Lieberman 71
Letter with enclosures to Senator Lieberman from Anne P. Diffendal, Execu-
tive Director, The Society ofAmericanArchivists 72
Letter dated June 23, 1993 to Senator Lieberman from David R. Bender,
Ph.D., Executive Director, Special LibrariesAssociation 125
Letter dated June 18, 1993 to Senator Lieberman from Marilyn L. Miller,
President, American LibraryAssociation 127
(III)

PUBLIC PAPERS OF SUPREME COURT JUS-
TICES: ASSURING PRESERVATION AND AC-
CESS
FRIDAY, JUNE 11, 1993
U.S. Senate,
Subcommittee on Regulation and
Government Information,
Committee on Governmental Affairs,
Washington, DC.
The Subcommittee met, pursuant to notice, at 9:35 a.m., in room
SD-342, Dirksen Senate Office Building, Hon. Joseph I.
Lieberman, Chairman ofthe Subcommittee, presiding.
Present: Senators Lieberman and Cochran.
OPENING STATEMENT OF SENATOR LIEBERMAN
Senator Lieberman. Good morning. The hearing will come to
order. I want to thank all ofyou forjoining us this morning as this
Subcommittee focuses its attention on the difficult question about
how best to preserve and grant access to the working papers of re-
tired or deceased Supreme Court Justices.
The recent release of the papers of Justice Thurgood Marshall
has brought into full public view a host of questions that has been
left unattended for a number of years. I must say that I read with
great fascination the series of articles in The Washington Post
based on Justice Marshall's papers that examined the Supreme
Court's decision-making process in some very controversial areas
such as abortion rights and civil rights.
As fascinating as it was to read about the discussions and nego-
tiations in chambers that preceded cases like Webster and Wards
Cove and Patterson, I must say that I read with a certain discom-
fort, two kinds of discomfort. The first was that as fascinated as I
was —and as much as I learned, I felt, in some senses, as if I had
been as if the curtain separating me and the public from the
inner world of the Supreme Court had been pulled back and I had
been let in, much to my surprise, to the inner workings of the
Court. In some senses, I will own up to having felt, if I may use
this term, something like ajudicial peeping torn.
Perhaps that is because I approach—these papers as a lawyer, as
an occasional litigator, as an admirer one might almost say a de-
voted fan—of the Supreme Court. On the other hand, I felt a very
different kind of discomfort as I thought about the dispute that fol-
lowed the release of Justice Marshall's papers, and that was that
they may not have ever been released at all. Indeed, they may not
(l)
have ever been preserved to be published and available for schol-
ars, researchers andjournalists.
In fact, as is well known, it is reported that at one point, Justice
Marshall himself threatened to burn his papers. While, of course,
that may have been hyperbole by Justice Marshall, nonetheless it
was his right to destroy his papers and, in fact, several Justices of
the Supreme Court have done just that at a considerable loss to
history and, in that sense, to our country.
From the outset ofour Government, the papers ofpublic officials
have traditionally been treated as the private property ofthose offi-
cials. They would decide where the papers should be deposited, if
at all, and what kind ofaccess should be granted to the papers.
During this century, however, we have been moving away from
that policy toward the principle that documents created by public
officials while employed by the public on public time belong to the
public. In 1934, Congress created the National Archives to preserve
Government documents. In 1950, the Federal Records Act was
passed to ensure preservation ofthe records ofGovernmental agen-
cies. And, in 1978, Congress passed the Presidential Records Act to
ensure the preservation of, and access to, the records of Presidents
ofthe United States.
Congress has also enacted statutes and rules to ensure that its
own committee records are public property, not the property of the
member ofCongress who happens to be the chair ofthe Committee.
Now, the Marshall papers episode, in addition to rasing questions
such as those that I myself felt as I watched it unfold, I think
shows the need for some set of ground rules to govern preservation
of, and access to, a Supreme Court Justice's working papers.
We invited each ofthe members ofthe Supreme Court to be with
us this morning. They regretted and said they could not come,
based on the fact that they are in the midst of their Friday con-
ferences and June is a busy time. However, I want to read from,
and I will put in the record, the letter that Justice Rehnquist did
send to me.
And at one point, he d—oes say, "Even with the limited time avail-
able to us, we have no" that is, between the time of the Marshall
episode and my letter inviting them, and this letter. "Even with the
limited time available to us, however, we have no hesitancy in ex-
pressing the opinion that legislation addressed to the issues dis-
cussed in your letter is not necessary and that it could raise dif-
ficult concerns respecting the appropriate separation that must be
maintained between the legislative branch and this Court." l
Senator Lieberman. I want to make clear that I, for one, am not,
at this time, proposing that we adopt something that might be
called a Judicial Records Act that would parallel the Presidential
Records Act. But I do think that the process of developing a set of
guidelines for the preservation of, and access to, these judicial doc-
uments needs to begin.
In deference to the Supreme Court's position in our constitu-
tional scheme and because ofconcerns for the separation ofpowers,
I, for one, am certainly prepared to wait to see how the Court will
address these issues. But I do not think that Congress can wait for
1Seepage 71.
the Court to act forever. There is just too much public interest in-
volved in this matter. In this regard, I would say that it is signifi-
cant that ChiefJustice Burger actually attempted to address some
of these issues on a Court-wide basis 20 years ago, but obviously
without success.
Now, the hearing this morning is designed to consider a number
of questions that are related to the preservation and publication of
judicial records. First, how, through rules of the Court or other-
wise, perhaps through legislation, can we be assured that the
drafts and work products related to the business of the Court are
preserved for posterity? Second, is it prudent to continue to rely on
individual Justices, their estates and institutions to which Justices
may have donated papers to weigh adequately the competing inter-
ests surrounding record preservation and disclosure and to set the
terms and conditions ofsuch preservation and disclosure?
At present, for instance, the archivist receiving the donation is
bound by the wishes of the donor. There are no fixed rules. Who,
then, should write the rules if there should be rules? If Congress
does, is this too invasive an act, given separation of powers consid-
erations? If the Court sets the rules, will they be adequately en-
forceable against third parties or against successors?
And third, if ground rules are needed, what is the right balance
between the interest of the public in access and the interest of sit-
ting Justices and the Court as an institution in safeguarding the
deliberative process? In fact, if I may just explain a little bit for a
moment the unease I felt about the Marshall papers. It was that
not only was Justice Marshall, in his papers, revealing to us the
thought process that he was going through. But he was also reveal-
ing his own interpretation or recording of the thought processes of
some ofhis colleagues, some ofwhom are still sitting on the bench,
and considering areas of case law that he comments on and that
are still developing.
What other interests, such as the interest of parties to litigation,
are implicated by disclosure of predecisional work of sitting Jus-
tices and how should these interests be accommodated? If restric-
tions on access are set, how long should they run, given the long
lifespan ofissues before the Supreme Court?
Now, this is not the first time these issues have been considered,
though I doubt that they have received as much public attention
as they have in the aftermath of the release of Justice Marshall's
papers. As I have mentioned, Chief Justice Burger did appoint a
committee 20 years ago to review these same issues. They were ex-
plored again in 1977 by the Public Records Commission, chaired by
former Attorney General Herbert Brownell.
The Brownell Commission, whose recommendations, incidentally,
formed the basis for the Presidential Records Act that we now
have, recommended that a Justice's working papers be made public
property, and that public access be allowed, but not until 15 years
had passed from the time the Justice left the Court. Of course, no
formal Court-wide or legislative action was taken in response to
that recommendation.
There is another more contemporary question that should be
asked, which was not an issue at the time the Brownell Commis-
sion studied these questions, and that is, as the Supreme Court
and all of us move into the age of electronic communications, how
should electronic records be addressed?
In many ways, Justice Marshall's papers, actually, may become
unique as the pen and paper age draws to an end and we go more
deeply into the electronic age. How will we preserve draft Supreme
Court opinions and comments from one Justice to another about
pending cases when these are all circulated by E-mail, by electronic
mail? In fact, it might be said that the dawn of the electronic age
actually gives a greater urgency to the need to examine and to deal
in a more formal way with the whole questions ofrecords preserva-
tion.
I look forward to a thoughtful discussion ofthese questions today
with the extraordinary and very able group of witnesses that I am
pleased have made themselves available to the Committee this
morning. I would now yield to my friend and colleague, and the
ranking Republican member ofthe Committee, Senator Thad Coch-
ran from Mississippi.
OPENING STATEMENT OF SENATOR COCHRAN
Thank you very much, Mr. Chairman.
I join you in welcoming our witnesses to this hearing today. I
think it is an important inquiry that we make today, but I also
think we need to recognize as we begin it that we are dealing here
with a question of some sensitivity and that we, as the Library of
Congress was directed to do in tne agreement with Justice Mar-
shall, should exercise some discretion. That is, we should be careful
and we should be discrete, and we should exercise good judgment
as we go about trying to inquire and then maybe to define what
the respective rights and obligations and duties are in protecting,
preserving and making available to the public papers of Supreme
Court Justices and others who may be officials of the U.S. courts.
I think one of the most compelling reasons for this discretion
that this Committee should exercise is the traditional separation of
powers, first of all, and the fact that we are coequal branches of
government. The judiciary is independent and should be. The Con-
gress and the executive, of course, have meddled in each other's
business for quite awhile, and that has become the norm rather
than the exception. And the passage ofthe Presidential Papers Act,
or the legislation that makes public the official property of U.S.
Presidents, is an indication of how Congress can exercise power
when it considers it to be in the public interest and that that over-
rides a consideration of the notion of being coequal and independ-
ent.
But it should also be noted that while there have been legislative
acts in the past that have attempted to rule or legislate that Gov-
ernment records were public and not private, there still remains in
the law the concept of private property by members of Congress
over their papers and their offices, cabinet members and others.
The Congressional committees are the only entities within the Con-
gress that have been decided through legislation to be custodians
for the public ofthe records ofthose committees.
But on the other hand, members of Congress, for example, are
considered to be the custodians of their records, and they are con-
sidered to be private property. And so it does not necessarily follow