Long Time Subcommittee Chair Looks Back

Representative Howard Coble(R-NC)

A member of the House since 1985, Representative Howard Coble (R-NC) finishes his last term as chair of the House Judiciary Subcommittee on Courts, the Internet, and Intellectual Property with the 107^th Congress. House rules provide that subcommittee chairs may serve for a maximum of three Congresses.
 
_Q:One of the responsibilities of your Subcommittee is the oversight of the administration of the federal Judiciary, and you’ve held a number of hearings on this in the past. What is your overall impression of the administration of the federal Judiciary? Are there areas where you feel improvements or changes could be made?

_A: On balance, I feel very good about the federal Judiciary. I can’t remember where I heard this, but a federal judge once said of other federal judges, "How do you tell someone with life time tenure what to do?" I think that was said only half tongue in cheek. I’ve always had mixed feelings about lifetime tenure. Men wiser than I did it to insulate judges from political pressure. But I’ve always thought it wouldn’t be a bad idea—and I’m just thinking aloud now—to examine this periodically. Appoint a judge to the bench. After a decade, examine him or her.

You’ve heard about the activism on the bench. I think that if you get a judge who is overly conservative or overly liberal and politically or socially focused on a certain issue, that could be a problem. It happens rarely, but I think it does happen.

I guess the federal Judiciary might find fault with us (the Congress) for being too deliberate or too slow or too thorough. And I guess we might say to them, let us know with more acceleration what your problems are.
 
_Q:You appear twice a year as an invited guest of the Judicial Conference. What are your impressions of the Conference as the policy-making body of the Third Branch? Is it effective as a policy-making body?
 
_A: I think so. As you know, twice a year I speak to the Chief Justice and the Judicial Conference. That’s one of the events I’m going to miss, when I’m no longer subcommittee chairman. The Conference has been generously receptive to me each time; I’ve never felt any sort of hostility or adversarial response. It was always very cordial.

I will always remember our visit with them on 9-11. That will be forever in my mind. I met with the Chamber of Commerce group from back home that morning, and then I went over to the Supreme Court for my semi-annual Conference meeting. I get in there and the Chief Justice hands me a note. And on the note were these words, "The Pentagon has been struck." And I will never forget how that affected me. That will be the most memorable visit I ever had with the Judicial Conference.

My only exposure to the Judicial Conference, really, are these biannual visits. I’m very high on the AO as well. I think that Ralph Mecham and Mike Blommer and his staff do a good job.
 
_Q:Do you think there should be more contact between Congress and the federal Judiciary?
 
_A: In the past there have been retreats where members of the Conference and members of Congress, people who have connections to courts issues such as Senators Hatch and Leahy, and Chairman Sensenbrenner and I, might go and interact. Perhaps those opportunities should become more frequent.

That kind of interaction is good. The meeting with the Judicial Conference at the Supreme Court is really pro forma. We talk for 5 or 10 minutes—but it’s a very brief update on current legislation.
 
_Q:A provision allowing cameras into federal courtroom has been included in at least one of the Federal Courts Improvement bills that have come out of your subcommittee. What are your own views on allowing cameras in courtrooms?
 
_A: I would not be averse to having cameras in the courtroom, but I would like for either the presiding judge or the chief judge to have pretty much the last call. That would make it more flexible.

Of course there’s another side to that. The court could become a theater. It could become a stage, knowing you’re on TV. That’s what happened with C-Span. Members claim there was far less showmanship on the House floor before C-Span cameras came on. But I still think that cameras serve a good purpose
 
_Q:What is the status of the current courts improvement bill? And what are the chances of it passing this Congress?
 
_A: We’ve sent it over to the Senate. I think we did a good job of scrubbing it over here, working things out with the Democrats and other people who are interested in the contents. There’s just a question of trying to get the Senate to move. It’s very difficult over there now.
 
_Q: In all your time as subcommittee chair, what is the most important piece of legislation you’ve championed?
 
_A: The Digital Millennium Copyright Act would be one, and the American Inventors Protection Act. The DMCA was probably the most significant change to copyright law since the 1976 Copyright Act. The American Inventors Protection Act was probably the most significant change to patent law in about 50 years. We worked very diligently on those. It took at least five years, and probably another two years before that of plowing the ground.
 
_Q:Are there any Judiciary-related issues you’re particularly concerned about?
 
_A: Toward the end of the recent hearing on the Ninth Circuit, I said, "I am less concerned about the problems in the Ninth Circuit than I am about the Senate inaction regarding unfilled vacancies in the federal Judiciary." I don’t think anybody picked up on that, but I wanted to send a signal across the Hill. By George, get off your duffs and let’s start filling these vacancies. I just feel like that needed to be said.

I would also like to mention that part of the DOJ reauthorization bill contains my judicial improvements act to update the discipline and disabilities statute. I think it is more than window dressing. One of the things we did when we wrote that bill, was to try to make it more user friendly. It’s not going to buried in some subsection of the Code anymore. It will have its own chapter; it will be easier to find.

Howard Berman, our subcommittee’s ranking minority member, and I asked that the Judicial Conference also consider some administrative changes, like changing websites to make sure there are links to rules, so that if there are citizens who think a judge has done something inappropriate, they’ll know where to get the forms to file the complaints and so forth. It’s not like we’re encouraging people to inundate the Judiciary with bogus complaints; but it’s a way of saying there is a mechanism in place for legitimate complaints and the Judiciary is so above-board that its not concealing that procedure away from the public. I think those kinds of things are good.

It’s true the Constitution only speaks to impeachment as a tool to do something about a real bad egg. But there are other things that can be done. I know Arthur Hellman, of the Pittsburgh School of Law, who has been a great resource for our subcommittee, has testified on these matters. And he said the way the statute works now is good because there are a lot of problems that get solved within the Judiciary that people never find out about. If someone has a substance abuse problem, or lacks a judicious temperament or something like that, his fellow judges can say "you have to cut this out, or we’re going to take some cases away from you."
 
_Q:You supported the Judicial Reform Act of 1998, a bill that became known as the "judicial activism" bill. It was crafted in response to what was called "activist" judges. You called the bill a "restrained but purposeful effort to combat specific areas of abuse that exist within the federal Judiciary." Do you still see "activism" as a problem today in the Judiciary?
 
_A: I guess it’s very difficult to gauge the extent to which activism exists, and to the extent it does, what can be done about it. This issue of activism came up in 1997 and 1998, right when I was first chairman, and I can remember we had two days of hearings. One of the days was devoted exclusively to the oversight topic of activism, and I remember Thomas Jipping testified at that hearing. He had written extensively on what a serious problem activism was. But I can remember Barney Frank asking him, "Would you please identify which judges should be impeached and what is the standard that Congress should create in impeaching them." And Jipping basically didn’t have a good response to any of that.

To the extent it exists, the only real way activism can be quelled is through oversight by the Judiciary itself. I can remember one of the witnesses at the hearing was a woman whose minor daughter had been raped and murdered by a man who had been sitting on death row for years and years. There was one judge in the circuit who would handle all the habeas cases. And what had really enraged not just this woman but people living in this community, was that he would routinely accept awards from organizations that were against the death penalty. And it made it seem like he was insulated, by virtue of his life tenure, and that he had his own political or social agenda that he could pursue with impunity.

I think sometimes it would behoove the Third Branch to be a little more self-aware of those kinds of things and the signals a judge’s actions may send out.
 
_Q:You’ve been a friend of the Judiciary, supporting legislation that has directly improved the federal courts. What advice would you offer the Judiciary in its dealings with Congress?
 
_A: I think we talked some earlier about communication. And that’s really good. If the Judicial Conference, through the AO, thinks that Congress needs to do something differently or is doing something wrong, just be civil and say, " We need some help here." And as long as we talk and maintain a civil tone, I think that’s good.

There’s an inherent tension between two co-equal branches of government, but I think we’ve done a very good job of setting a civil tone in our subcommittee. And when you can do things like that, you end up with a Court Improvements Bill that passes. You just keep talking to each other. And in addition to the Judicial Conference, the AO—Ralph Mecham and Mike Blommer—have been equally generous with us, and just been a pleasure with whom to work.

But it’s been a real good ride. I’ve very much enjoyed this subcommittee, and I’ve enjoyed very much Chairmen Hyde and Sensenbrenner. Their management styles are different but both have been good chairmen. Howard Berman has been a first-rate ranking member, as was Barney Frank. I got to know the AO folks better, and of course, I’m very appreciative to the Judicial Conference. I hope to still be on the subcommittee, and we’ll continue that friendship.