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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 discomfort, 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 officials. 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 available 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 difficult 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 documents 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 interests 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 sitting 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 revealing 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 preservation. 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 independent. 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 considered to be private property. And so it does not necessarily follow