Thread by @marinklevy

I think everyone knows that Bob Katzmann was an extraordinary judge (👨‍⚖️) and a true mensch (♥️).

But do you know that he also made huge contributions to judicial administration? Ready to hear all about it? Well, have I got a court thread for you . . . (⚖️🧵) (1/x)

Let’s begin with a relationship problem – and the 2 players in this part of the story are Congress and the Courts (💕). Their problem, as with most couples, had to do with communication.

(Though unlike with most couples, theirs was all about judges interpreting statutes.) (2/x)

Specifically, as Judge Henry Friendly (❤️) once wrote about the “problems posed by defective draftsmanship”

(way to point the finger, Henry👉)

we see “the occasional statute in which the legislature has succeeded in literally saying something it probably did not mean.” (3/x)

This relationship problem was not new. In fact, in 1921 Cardozo had proposed a “ministry of justice” made up of citizens with legislative expertise to review statutes and generally “mediate between the branches.”

(And we thought the Ministry of Magic was cool! 🧙‍♀️) (4/x)

Sadly, no Ministry came to pass. ☹️

The great RBG (👩‍⚖️🤩 ) & Peter Huber proposed a standing “second look at laws committee” in Congress to reexamine and potentially repair defective statutes.

Sadly, no Committee came to pass either. 😢 (5/x)

So we were left with the status quo – with judges writing opinions about problematic statutes (a misplaced comma, an ambiguous phrasing) and hoping Congress might sit up and take notice. - Sigh -

We were left with the status quo, that is, until Bob Katzmann came along. 🦸‍♂️ (6/x)

Katzmann was by this point a well-known scholar of Government. (Not long after, he would write the book 📕 on Courts and Congress – literally, it was called "Courts & Congress.")

Who better to call? ☎️ (7/x)

Well the DC Circuit agreed and called up (📞) Katzmann and the wonderful Judge Frank Coffin, asking the duo to help with "relations between Congress and the judiciary," specifically to (in Katzmann's words) "improve interbranch understanding." 😍 (8/x)

So Katzmann got down to business! And he and the great Russell Wheeler @BrookingsInst (and a few colleagues) created The Governance Institute—a non-profit aimed at “easing problems associated with the separation of powers[.]” 🦸 (9/x)

Their first task? Figuring out if Congress was paying attention to opinions flagging defective statues. What did they find? As RAK wrote, “congressional staffs were not aware of the court’s decision” in the majority of these cases!

Talk about a breakdown in communication! 🤦‍♀️

So the Gov. Institute formalized a program whereby the DC Circuit would send opinions to the Speaker, Minority Leader, Parliamentarian, General Counsel to the Clerk, & the Legislative Counsel.

In other words they got the Court to stop waiting by the ☎️ and reach out to Congress!

This open communication was deemed a success (😄), and (then) Chief Justice Rehnquist 👨‍⚖️ endorsed it soon after in 1993. The Judicial Conference then urged the other 12 circuits to institute similar projects . . . which they did!

(Don’t you love a happy ending?! 🥰) (12/x)

As the great @tnarecha & I wrote recently for the @CalifLRev, the project is still in effect today. Over the past decade, the courts of appeals have transmitted dozens of opinions to Congress. And there is reason to think Congress is listening . . . 👂

papers.ssrn.com/sol3/papers.cf…

As Senior Counsel in the 🏠 of Representatives Leg. Counsel Office said a few years back, “[W]e can benefit from the feedback the courts give us...We try not to repeat the ambiguities in future legislative drafts.”

(If that isn't relationship improvement, I don't know what is.)

More seriously, this, to me, is Judge Katzmann’s legacy. He was someone who cared deeply about improving our system of government and then – without fanfare – quietly and steadfastly did the work to get it done.

Not all heroes wear capes . . . some eventually wear robes.👨‍⚖️♥️

For anyone wanting to know more about this wonderful interbranch project and Judge Katzmann’s role in it, you can read his own work: "Bridging the Statutory Gulf between Courts and Congress: A Challenge for Positive Political Theory" in @GeorgetownLJ 👇

heinonline.org/HOL/LandingPag…

and "A Mechanism for 'Statutory Housekeeping': Appellate Courts Working with Congress" with Russell Wheeler 👇

heinonline.org/HOL/LandingPag…

(Fin)

P.S. I should add that the essay @tnarecha & I wrote grew out of a fabulous symposium put on by @BklyJudicial about improving the federal judiciary, which Chief Judge Katzmann attended. The Judge spoke about the interbranch project, which inspired @tnarecha & me to learn more. ♥️