Appointed or anointed: Judges, congress, and the passage of the bankruptcy act of 1978 part one: Outside looking in

American Bankruptcy Law Journal

Volumn 81, Issue 1, 2007, Pages 1-30

  Mund, Geraldine ^a,b  

^a United States Bankruptcy

^b Central District of California ^*

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34548096443     PISSN: 00279048     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (120)

1. U.S. Constitution, art. I, sec. 8, cl. 4. Editor's note: The astute reader may recognize that this is not proper Bluebook format, which would be U.S. Const. art. I, § 8, cl. 4. This article was written for a different academic field - history - which like most social sciences uses the Turabian version of the Chicago Manual of Style. Because most of the citations are to nonlegal sources such as letters and interviews, the ABLJ elected to retain the citation style utilized in the field for which it was originally written. For most legal writing the ABLJ will continue to utilize the Bluebook citation style.
2. Judges of the United States district court, court of appeals, and supreme court are appointed for life or good behavior under the provisions of Article III of the Constitution.
3. Chandler Act, Pub. L. No. 75-696, 52 Stat. 840 (1938) (adding chapters X, XI, XII, XIII and XIV to the Bankruptcy Act of 1898).
4. United States District Judges for the Northern District of Texas to Referees in Bankruptcy for the Northern District of Texas, 29 September 1967, letter; reprinted in Journal of the National Association of Referees 42 (Apr. 1968): inside front cover.
5. Daniel R. Cowans to Thomas J. MacBride, 20 June 1977, letter, David Kline personal Collection, Oklahoma City, Oklahoma.
6. William M. Trencher, Administrative Office Division of Bankruptcy, to Elaine Mielke, 3 August 1982, memo, WeLler Collection, American Bankruptcy Institute, Alexandria, VA.
7. For example, as late as fiscal year 1979, the library budget for the entire bankruptcy judiciary was $30,000. For fiscal year 1980, it was determined that the amount needed to upgrade each library to minimal standards would be $27,500 per bankruptcy judge. Transition Advisory Committee, "Recommendation Re: Library Budget," undated, (but probably mid-1979), memo, Bankruptcy Judge David Naugle personal collection, Riverside, California.
8. Royal E. Jackson, chief of the Bankruptcy Division, "Remarks at the meeting of the National Association of Referees in Bankruptcy in San Diego, CA, 7 October 1964;" reprinted in Journal of the National Association of Referees in Bankruptcy 39 (Jan. 1965): 16;
9. Royal E. Jackson, "Remarks at the Annual Meeting of the National Association of Referees in Bankruptcy at Detroit, MI, 25 October 1965;" reprinted in Journal of the National Conference of Referees in Bankruptcy 40 (Jan. 1966):10.
10. Joe Lee, conversation with author, San Antonio, TX, 3 November 2005. Joe Lee recalls: "In arranging these things, and subsidizing our trips there, maybe the Administrative Office paid for our revolution, if there was one, because certainly on our salaries, we couldn't have afforded it otherwise."
11. Joe Lee, interview by Bradley B. Williams for NCBJ Oral History Project, draft transcript, 19 October 2005, 53. It is somewhat ironic that these seminars were first ordered by the Bankruptcy Committee of the JCUS in 1959, "noting the inadequacy of the Administrative Office's supervision of procedures used by the referees in bankruptcy." Peter Graham Fish, The Politics of Federal Judicial Administration (Princeton, NJ: Princeton University Press, 1973), 367. Fish notes that "with characteristic speed," it took five years to actually establish these seminars.
12. In 1926, the referees had formed a professional organization initially known as the National Association of Referees in Bankruptcy. Journal of the National Association of Referees in Bankruptcy 1 (Dec. 1926): 1.
13. The organization went through various name changes, becoming the National Conference of Referees in Bankruptcy in 1965 and the National Conference of Bankruptcy Judges in 1973. "News and Editorial Comment," Journal of the National Conference of Referees in Bankruptcy 40 (Jan. 1966): 2;
14. Russell L. Hiller, 'A Conference Anniversary - Fifty Years in Retrospect," American Bankruptcy Law Journal 51 (Winter, 1977): 55. This article uses the official name for the respective time-frame that is being addressed.
15. In 1946, only 10,196 bankruptcy cases were filed, but 208,329 were initiated in 1967- Commission on the Bankruptcy Laws of the United States, Report of the Commission on the Bankruptcy Laws of the United States, July 1973, 30 July 1973, 2.
16. David Stanley, "The Brookings Institution Study on Problems of Bankruptcy," Journal of the National Conference of Referees in Bankruptcy 40 (Jan. 1966): 4. "Excerpt from Taped Proceedings of Bankruptcy Committee Meeting February 26, 1976," Weinfeld Collection, National Bankruptcy Archives, Biddle Law Library, University of Pennsylvania, Phildelphia, PA.
17. Cowans to MacBride, 20 June 1977 letter; Congress, Senate, A Bill to Create a Commission to Study the Bankruptcy Laws of the United States, 90th Cong., 2nd sess., S.J. Res. 100, Congressional Record, 113, pt. 16 (2 August 1967): 20894.
18. "Minutes of the Annual Meeting of the National Conference of Referees in Bankruptcy and Meetings of the Board of Directors at Washington, D.C., September 10-13, 1967;" reprinted in Congress, Senate, Subcommittee on Bankruptcy, Hearings on S.J. 100 a Bill to Create a Commission to Study the Bankruptcy Laws of the United States, 90th Cong., 2nd sess., 16 and 17 July 1968, Committee Print, 95.
19. S. Jt. Res. 88 was passed by the Senate (with no additional hearings) on June 20, 1969 and introduced in the House on June 23, 1969. House Judiciary Subcommittee Number 4 held hearings on October 1, 1969 and the House Judiciary Committee reported out S. Jt. Res. 88 on March 18. 1970. The House passed the resolution in an altered form on June 30, 1970, after which it went back to the Senate and was passed on July 17, 19.70. On July 24, 1970, President Nixon signed it into law. Pub. L. No. 91-354, 84 Stat. 468 (1970).
20. 28 United States code sec. 331.
21. 28 United States code secs. 601 & 604.
22. Ibid.
23. In 1941 the JCUS created a three-person Bankruptcy Division in the AO to examine and audit bankruptcy reports and accounts, collect bankruptcy statistics, investigate rules and practices of bankruptcy administration and handle complaints. The Bankruptcy Division also served as liaison to the JCUS, the Bankruptcy Committee, and the district judges and referees in the various judicial districts. Fish, Politics of Federal Judicial Administration, 180-181.
24. Congress, House, Committee on the Judiciary, Report to Accompany S.J. 88, 91st Cong., 1st sess., Report No. 91-240, 18 June 1969, National Archives, box 135, RG 233.
25. William E. Foley to Emanuel Celler, Chairman, Committee on the Judiciary, 5 November 1969, letter; reprinted in Congress, House Committee on the Judiciary, Report to accompany S.J. Res. 88, 91st Cong., 2nd sess., Report No. 91-927, National Archives, box 135, RG 233. Congress, House, Committee on the Judiciary, Statement of Edward Weinfeld, Hearings Before Subcommittee No. 4 of the Committee on the Judiciary on S.J. Res. 88 to Create a Commission to Study the Bankruptcy Laws of the United States, 91st Cong., 1st sess., 1 October 1969, 20, National Archives, box 135, RG 233. Although Foley's letter set forth the "party line," he testified that "from simply a personal standpoint, Mr. Friesen [director of the AO] and I both feel that, however the commission is structured, referees should be represented. And insofar as that may differ from the Conference position, that is solely a personal standpoint." Ibid., 19.
26. Beyond the JCUS opposition to limiting the appointment discretion of the chief justice, the Department of Justice opposed the specification that the president must select active bankruptcy practitioners as "an undue limitation on the president's appointment authority." Richard G. Kleindienst, Deputy Attorney General, to Emanuel Celler, 1 October 1969, letter; reprinted in Congress, House Committee on the Judiciary, Report to Accompany S.J. Res 88, 5. On the other hand, Professor Charles Seligson, later a member of the Commission, testified that it was important to include referees because of their unique day-to-day experience. House Subcommittee No. 4, Hearings, 1 October 1969, 63.
27. Congress, Senate, Senator Burdick speaking for Creation of a Commission to Study the Bankruptcy Laws of the United States, S. J. Res. 88, 91st Cong., 2nd sess., Congressional Record 116, pt. 18 (15 July 1970): 24436.
28. "Attendance of a referee at sessions of the Judicial Conference of the United States," Journal of the National Association of Referees in Bankruptcy 34 (Oct. 1960): 1.
29. Cowans to MacBride, 20 June 1977 letter. More recently, Cowans recalls that he received a chilly reception from both chief justices and that Warren "threw us out of his office - politely, with a smile." Describing the response of Burger, Cowans states that he "got relatively the same treatment, 'Get out of here and don't bother me.'" Daniel Cowans, phone interview by author, tape recording, 10 April 2006. The portion of the letter dealing with Weinfeld's suggestion to go to Congress probably refers to Weinfeld's letter of 12 December 1973 [Edward Weinfeld to Joe Lee, 12 December 1973, letter; reprinted in Congress, Senate, Subcommittee on Improvements in Judicial Machinery, Hearings on S. 2266 and HR. 8200, 95th Cong., 1st sess., 28 November 1977, Committee Print, 441.]
30. Daniel R. Cowans to William E. Foley, 14 April 1970, letter, Weinfeld Collection. Present at the meeting were Referees Clive W. Bare, William J. O'Neill, Daniel R. Cowans, Asa S. Herzog, W. Homer Drake, Joe Lee, and Saul Seidman; from the AO were Roland F. Kirks, William E. Foley, Joseph F. Spaniol, Royal E. Jackson, and Berkeley Wright. No Article III judges attended. Discussion ranged from cooperation with the Internal Revenue Service in the area of Chapter XI reorganizations and sale of property subject to IRS liens to the lack of flexibility in the Judicial Salary Plan when applied to bankruptcy staff. In terms of inclusion of referees in decisions on legislative matters, the director decided that when the AO's position on a bankruptcy bill was requested by a judiciary committee, the referees would be given an opportunity to comment, but noted that "we do not comment unless our views are requested." Berkeley Wright to Edward Weinfeld, "Report of Liaison Committee Meeting October 27, 1970," 27 October 1970, memo, Weinfeld Collection.
31. There is no record of Burger responding directly or personally to a bankruptcy judge. But once a bankruptcy judge was elevated to district judge, Burger became accessible. Thus, when Gene Brooks (president of NCBJ in 1979) was elevated to the district court and wrote Burger concerning past relations between the chief justice and NCBJ, he received a respectful, immediate and personal response. Warren E. Burger to Gene E. Brooks, 15 November 1979, letter; reprinted in Conference News 1 (1980): 3. Conrad Cyr, who met with Burger both before and after Cyr was elevated to the district court, recalls: "The only time he was half way pleasant to me was when I became a district judge." Conrad Cyr, phone interview by author, tape recording, 24 April 2003. Chief Justice Earl Warren spoke at the 1962 meeting of the NCRB in Chicago and at the first AO seminar for newly appointed referees in 1964. While Dan Cowans, a referee at that time, recalls that Warren told the referees not to get uppity, the reported remarks do not reflect any negativity and are quite respectful of the referees and the importance of their work.
32. Earl Warren, "Address Delivered by the Honorable Earl Warren, Chief Justice of the United States," Journal of the National Association of Referees in Bankruptcy 37 (Jan. 1963): 3;
33. "The Referee's Seminar," Journal of the National Association of Referees in Bankruptcy 38 (April 1964): 34. Cowans interview.
34. Rowland F. Kirks to William J. O'Neill, 14 December 1970, letter, Weinfeld Collection.
35. Writing on behalf of the NCRB, O'Neill stated that he was "pleased and gratified to learn that additional effort is being devoted to this matter [removing the limitation on annual salary raises for referees] in order to arrive at an appropriate and equitable determination. With your kind permission, our Conference would deeply appreciate the opportunity to appear and be heard on this issue at the pleasure and convenience of the Committee." William J. O'Neill to Warren E. Burger, 20 April 1971, letter, Weinfeld Collection. Administrative Secretary to the Chief Justice to William J. O'Neill, 29 April 1971, letter, Weinfeld Collection.
36. Mr. Wright to Mr. Kirks, re: "Briefs on subjects to be discussed at the Referees' Liaison Committee meeting on Thursday, November 4, 1971 at New York City," 3 November 1971, memo, Weinfeld Collection. Although Berkeley Wright may have been in a bureaucratic mode in 1971, he was supportive of a separate court system by the time that he testified before the House in 1975 and by 1982 he was a complete champion of the bankruptcy judges. Peter McCabe, email to author, 15 March 2007, 2:07 p.m. House Subcommittee, Statement of Berkeley Wright, Hearings, 7 May 1975, 5-6.
37. "Berkeley Wright to Mr. Kirks, "Matters Which May Be Discussed At Your Meeting With Representatives Of the Referees' Conference on December 10, 1971," 8 December 1971, memo, Weinfeld Collection. Saul Seidman, president NCRB, to Rowland F. Kirks, 20 January 1972, letter, Weinfeld Collection. Rowland F. Kirks to Saul Seidman, 28 January 1972, letter, Weinfeld Collection.
38. "Saul Seidman [probably] to Edward Weinfeld, 13 June 1972, unsigned letter, Weinfeld Collection.
39. 28 United States code sec. 333.
40. Judicial Conference of the United States, Report of the Proceedings of the Judicial Conference of the United States, 28 October 1971. United States magistrates (now called magistrate judges) are judicial officers appointed by the district courts under the authority of the Federal Magistrates Act set forth in 28 United States Code sec. 636 to assist the district judges in carrying out their duties. It would have made sense to include both the magistrates and the referees since the statutory purpose of the annual judicial conferences of the circuits is to consider the business of the courts and advise the chief judge of the circuit on means to improve the administration of justice within the circuit. 28 United States Code sec. 333.
41. Saul Seidman to Henry J. Friendly, chief judge of the Second Circuit Court of Appeals, 7 February 1972, letter, Weinfeld Collection. Henry J. Friendly to Saul Seidman, 3 February 1972, letter, Weinfeld Collection. Fish, Politics of Federal Judicial Administration, 342. Seidman [probably] to Weinfeld, 13 June 1972 letter. Former Bankruptcy Judge Herb Katz recalls: "I am told-this is hearsay-but Judge Chambers, who was at the Ninth Circuit, chief judge, was asked by somebody ... [why] bankruptcy judges were not allowed to come to the Judicial Conference. And he was alleged to have said, 'If I invite those people, I have to invite the janitors as well.'" Herbert Katz, phone interview by author, tape recording, 1 July 2004. However, Dan Cowans, a referee from 1959 to 1974, attended the Ninth Circuit Judicial Conference many times during that period as a member of the circuit bankruptcy committee with his expenses paid by the government, although Judge Chambers did not allow him to be present at the portions of the meeting reserved for judges and told him to go with the lawyer delegates. Cowans interview. As late as 1978, even though Judge James Browning, then chief judge of the Ninth Circuit, specifically invited five bankruptcy judges to attend the circuit conference, Senior District Judge Lloyd George (formerly a bankruptcy judge) reports that "they wouldn't call me 'judge.' They called me mister." Lloyd George, phone interview by author, tape recording, 20 December 2004.
42. Berkeley Wright, Memorandum for the Committee on Bankruptcy Administration of the Judicial Conference of the United States, re: "Material submitted by the National Conference of Referees in Bankruptcy," 30 June 1972, memo, Weinfeld Collection. This argument, which would later be echoed by Judge Weinfeld, was convenient but inaccurate. Chief Justice Burger had stated that "'when Congress is legislating on matters directly affecting the courts ... it is not only appropriate for judges to comment upon issues which affect the courts but absolutely necessary.'" Peter Graham Fish, The Office of the Chief Justice, (Charlottesville, VA: University of Virginia Press, 1984), 115.
43. Untitled notes and partial transcript on the meeting of the Committee on the Administration of the Bankruptcy System, 10 July 1972, author unknown, Weinfeld Collection; Memorandum to Files, re: "Action taken by the Bankruptcy Committee of the Judicial Conference at its meeting July 10, 1972 in regard to suggestions submitted by the National Conference of Referees in Bankruptcy," 11 July 1972, memo, Weinfeld Collection.
44. Joe Lee to Edward Weinfeld, 30 November 1973, letter, Weinfeld Collection.
45. Weinfeld to Lee, 12 December 1973 letter.
46. "Edwards Introduces Bill to Revise Bankruptcy Laws," 14 January 1975, press release, Legislator's Archives, San Jose State University Library, San Jose, CA, box 77, folder 13.
47. Joe Lee to Warren E. Burger, 1 March 1974, letter, Weinfeld Collection.
48. Joe Lee interview, 3 November 2005.
49. The senators rarely or never participated, though Thomas Burgum, administrative assistant to Senator Burdick, attended most of the meetings and was fully involved in the deliberations. "Bankruptcy Reform: Then and Now," American Bankruptcy Institute Law Review 12 (Spring 2004): 303.
50. For more information about the career of Professor Kennedy, see "A Tribute to Professor Kennedy," Bankruptcy Developments Journal 18 (2002): 229.
51. NCRB created a Liaison Committee to respond to requests from the Commission. Chaired by Robert B. Morton, it was comprised of John T. Copenhaver, Jr., Daniel R. Cowans, Conrad K. Cyr, Joe Lee, and Arthur L. Moller. This committee met in Kansas City, Missouri on October 15, 1971 and in Dallas, Texas on April 12, 13 and 14, 1972 to formulate written responses on a broad range of issues set forth in questions posed by the Commission. Joe Lee, email to author, 9 June 2006, 1:27 p.m.
52. "Commission on the Bankruptcy Laws of the United States, Hearings of the Commission on the Bankruptcy Laws of the United States, 11 November 1972, 185-6, 194, 223-4, copy obtained from Bankruptcy Judge W. Homer Drake, Jr., Newman, GA.
53. Each of the twelve federal circuits has a court of appeals and a group of trial courts, and contains a judicial council (also referred to as the circuit council), which carries out the administrative functions of the entire circuit such as analyzing the need for additional judgeships and approving construction of new courthouses. At that time, the judicial council was comprised of all of the active court of appeals judges in that circuit. Since then, it has included a mixture of circuit judges and district judges, and in some circuits one or more bankruptcy judges and magistrate judges as non-voting members.
54. Ibid., 217-220. The shorthand used for lifetime appointees is "Article III judges" (appointed by the president for life or good behavior on advice and consent of the Senate as set forth in Article HI of the United States Constitution) and for term appointees is "Article I judges" (appointed by some other method or for a less than lifetime term to administer the bankruptcy law created by Congress pursuant to Article I, section 8 of the Constitution). This is used even though Article I deals with the power of Congress, which does not actually appoint judges, and the creation of courts other than the United States Supreme Court is a power delegated to Congress under Article III, sec. 1 of the Constitution. So although the phrase "lifetime judges" versus "term judges" is more accurate, the literature all uses "Article III" and "Article I."
55. In 1973 there were 612 Article III judges (9 on the Supreme Court, 93 active and 42 senior judges on the courts of appeals, and 388 active and 80 senior judges on the district courts). There were 201 referees-in-bankruptcy and 514 magistrates, of which only 88 magistrates were employed as such on a full-time basis. Administrative Office of United States Courts, Annual Report of the Director of the Administrative Office of the United States Courts 1973 (Washington, D.C.: GPO, 1974), 92. Another set of figures from the AO shows that in 1973 there were 220 referees-in-bankruptcy: 31 part-time and 189 full-time. Trencher to Mielke, 3 August 1982 memo. The difference might reflect authorized versus filled positions.
56. Cyr did not drop this idea when it was not adopted by the Commission or included in the Judges' Bill, but presented it to Congress in a slightly different form in 1977. Congress, House, Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary, Statement of Hon. Conrad Cyr, Supplementary Hearings, 95th Cong., 1st sess., 13 December 1977, Committee Print 36, 166-184.
57. It is of interest that Circuit Judge Shirley Hufstedler independently devised a similar proposal, though her purpose was not to protect the jobs of bankruptcy judges, but to insulate the courts of appeals from an expected flood of bankruptcy appeals. House Subcommittee, Statement of Hon. Shirley Hufstedler, Supplementary Hearings, 13 December 1977, 63.
58. Commission on the Bankruptcy Laws of the United States, Minutes, Meeting of November 13, 1972, 2, copy provided by Gerald K. Smith, Esq., Phoenix, AZ.
59. Commission on the Bankruptcy Laws of the United States, Report of the Commission on the Bankruptcy Laws of the United States, July 1973, 30 July 1973, 94.
60. Ibid.
61. Cowans interview.
62. The NCRB bill was introduced by Congressman Byron G. Rogers as was a parallel bill by the National Bankruptcy Conference. The House Judiciary Committee Subcommittee No. 4 held a hearing on both bills on October 1, 1969 and requested the two organizations to resolve their differences, which they did, leading to H.R. 18871 and S. 4247. Congress, Senate Committee on the Judiciary, Report to accompany S. 4247, Amending the Bankruptcy Act, 91st Cong., 2nd sess., 16 September 1970, Report 91-1173,
63. Lee Personal Collection, Lexington, KY. Lawrence P. King to Quentin N. Burdick, 21 January 1970, letter; reprinted in Report to accompany S. 4247, 6.
64. Although it was unique for NCRB to offer its own legislation, through the years various referees had testified on bankruptcy revisions pending before Congress. For example, see Benjamin L. Zelenko, "The Role of the Referee in Legislative Reform of the Bankruptcy Act," Journal of the National Conference of Referees in Bankruptcy 43 (Oct. 1969): 101.
65. Asa Herzog to W. Homer Drake, 13 December 1973, letter, Lee Personal Collection. As noted above, for the second time the referees approached Judge Weinfeld, seeking a discussion to prepare a united policy on the structure of the proposed new court, and for the second time they were informed that this would not be beneficial. Lee to Weinfeld, 30 November 1973 letter. By the time Lee sent the November 30, 1973 letter to Weinfeld, NCBJ had already decided to seek introduction of the bill that it was drafting. But because Weinfeld had dissented from the Commission's Report, Lee felt that there was common ground on the issue of turning over case administration to the executive branch. Besides that, as Joe Lee recalls, "we didn't want to rankle him too much." Having had low expectations of cooperation because Weinfeld "just wanted us to remain on the lowest rung of the judicial pecking order," Lee remembers that the NCBJ Legislative Committee "was not at all disappointed that he didn't want to talk to us." Joe Lee, email to author, 6 February 2007, 7:26 p.m.
66. Congressional Record 119, pt. 26 (9 October 1973): 33445-46; Congressional Record 119, pt. 26 (11 October 1973): 33796.
67. During the 93rd Congress, bankruptcy reform lay dormant except for a single hearing in the House Subcommittee on the Commission's Bill.
68. Congress, House, Committee on the Judiciary, Report to accompany H. R. 3490: Amending Section 40b of the Bankruptcy Act (11 U.S.C. 60(b)) to Remove the Restriction on Change of Salary of Full-Time Referees, 93rd Cong., 1st sess., 29 October 1973, Report No. 93-610, 1-2, National Archives, Records of the U.S. House of Representatives, 93rd Cong. Committee on the Judiciary, box 4.3, RG 233.
69. Seidman to Kirks, 20 January 1972 letter.
70. Kirks to Seidman, 28 January 1972 letter.
71. Judicial Conference of the United States, Report of the Proceedings of the Judicial Conference of the United States, 26 October 1972, 57.
72. Congress, House, Committee on the Judiciary, Hearing: H.R. 3490 and 5323, Remove the Restriction on Change of Salary of Full-Time Referees, 93rd Cong., 1st sess., 22 June 1973, National Archives, Records of the U.S. House of Representatives, 93rd Cong. Committee on the Judiciary, box 4.3, RG 233.
73. William E. Foley to Peter W. Rodino, Jr., 22 May 1973, letter; reprinted in House Judiciary Committee, Report to accompany H. R. 3490, 3-4. The bill was introduced in the 93rd Congress as H.R. 3490. House hearings were held in June 1973, with support from the NCRB, AO, and JCUS. It passed the House on November 6, 1973, the Senate on December 12, 1973, and was signed into law on December 27, 1973 as Pub.L. No. 93-200, 87 Stat. 838 (1973).
74. "Some people on the east coast thought of using the term chancellors-in-bankruptcy, an old equitable term. That didn't go very far." William J. Lasarow, talk, Bankruptcy Judges' Retreat for the Central District of California, Palm Springs, CA, video recording 28 February 2004.
75. Congressional Record 120, pt. 23 (12 September 1974): 30969;
76. Congressional Record 120, pt. 24 (26 September 1974): 32703. Murray Drabkin (counsel for NCBJ) and Francis Rosenberger (attorney and later chief counsel and staff director to the Senate Judiciary Committee) arranged to have the Judges' Bill introduced by the same people who introduced the Commission Bill, which led to joint hearings, removed any conflicts, and gave NCBJ "a seat at the table from the get-go."
77. Joe Lee, interview by Bradley B. Williams for NCBJ Oral History Project, draft transcript, 20 October 2006, 84. Dan Cowans (a former president of NCRB) was a constituent and acquaintance of Don Edwards, who agreed to introduce the Judges' Bill in the House and handle the two together. Shortly before he introduced the bill, Edwards wrote Cowans: "I trust that by the time we finish our consideration we will have satisfactorily drafted a new Act and alleviated your fears about the bad features you refer to. As you may know, I have agreed to introduce shortly after this Labor Day recess the bill proposed by the National Conference of Bankruptcy Judges, and I do assure you that it will receive serious and equal treatment during our Subcommittee's considerations." Don Edwards to Daniel R. Cowans, 28 August 1974, letter, National Archives, 93rd Cong., 2nd sess., files of Judiciary Subcommittee, the Bankruptcy Act of 1973, general correspondence.
78. Whereas Congressmen Edwards and Wiggins jointly introduced the Judges' Bill in the House, only Senator Burdick did so in the Senate since Senator Cook left the Congress at the end of 1974. Congressional Record 121, pt. 1 (14 January 1975): 91-92;
79. Congressional Record 121, pt. 1 (17 January 1975): 695-96. Tom Burgum, Senator Burdick's aide and Deputy Counsel to the Senate Subcommittee on Improvements in Judicial Machinery, told Joe Lee that the Judges' Bill received the lower number because "those who are last are now first." Joe Lee email, 9 June 2006.
80. Listing administrative functions as opposed to judicial ones was an ongoing exercise throughout the hearings at all levels. It was never fully resolved.
81. Murray Drabkin to author, 9 August 2006, letter.
82. The principal drafters of the Judges' Bill were Referee Joe Lee and NCBJ Counsel Murray Drabkin, assisted by the other members of the NCBJ Legislative Committee: Bankruptcy Judges John T. Copenhaver, Jr., Conrad K. Cyr, W. Homer Drake, Jr., Arthur L. Moller, and Robert B. Morton. Hiller, "A Conference Anniversary," 56.
83. Congress, Senate, Subcommittee on Improvements in Judicial Machinery of the Committee on the Judiciary, Hearings on S. 235 and S. 236, 94th Cong., 1st sess., 20 February 1975, Committee Print, Part 1, 48, 69-70.
84. NCRB obtained its funds through the sale of subscriptions to the American Bankruptcy Law Journal. Lee interview, 3 November 2005.
85. The National Bankruptcy Conference is a nonprofit unincorporated organization which, since about 1932, focused on the administration of bankruptcy law. In 1977, it had fifty-eight full members and eleven associate members, who were representative of different groups. House Subcommittee, Supplementary Hearings, 14 December 1977, 238.
86. According to Congressman M. Caldwell Butler, the bankruptcy judges had included congressional staffers in the very creation of the Judges' Bill: "The National Conference of Bankruptcy Judges, with continuous consultation with subcommittee staff, proposed an alternative version of its own." Congress, House, Remarks of Congressman Butler, Debate on HR. 8200, Congressional Record 123, pt. 27 (27 October 1977): 35448.
87. Due to this access and interaction, the referees gained the confidence and respect of the House and Senate leadership. Thus, for example, in May 1976, Congressman Don Edwards wrote Bankruptcy Judge John Copenhaver, president of NCBJ, that "I want you to know that I deeply appreciate the cooperation the Subcommittee has received from so many of your members as we have labored with our major revision of the Bankruptcy Act. I have been impressed as the hearings progressed and the data accumulated with the startling story that unfolded reflecting the unusual degree of competence of all your members and the outstanding job which the existing bankruptcy courts and judges have accomplished under difficult conditions." Don Edwards to John T. Copenhaver, Jr., 4 May 1976, letter, Kline Collection.
88. Ken Klee and Richard Levin began work for the House Subcommittee on Civil and Constitutional Rights in summer 1974 and 1975 respectively;
89. Robert Feidler began work for the Senate in 1974 and Harry Dixon in August 1975. Ken Klee, interview by author, tape recording, Los Angeles, 9 June 2003;
90. Richard Levin, interview by author, tape recording, Woodland Hills, CA, 21 July 2003;
91. Robert Feidler, phone interview by author, tape recording, 13 August 2003;
92. Harry Dixon, phone interview by author, tape recording, 24 October 2005.
93. Senate Subcommittee hearings took place on February 19, 20; March 12, 13; April 16, 17, 24 29, 30; June 4; July 31; September 24, 25; October 1, 8, 30; November 5, 6, 11, 12, and 18, 1975. House Subcommittee hearings occurred on May 7; July 10; September 8, 12, 19, 25, 26, 29; October 3, 6; December 5, 8, 10 and 15, 1975; and January 29, February 19, 20, 23, 27; March 1, 5, 8, 12, 15, 18, 19, 29; April 2, 5, 9, 12, 26, 27, 30; and May 3, 1976.
94. Senate Subcommittee, Hearings, 20 February 1975, 64-5.
95. IbId, 47.
96. Lee to Burger, 1 March 1974 letter.
97. Cyr wrote in his statement: "As the judicial powers and responsibilities of the bankruptcy judge have evolved to their present autonomous level, it seems reasonable to expect that bankruptcy judges would have been accorded representation within the policy-making forum for bankruptcy administration, the Committee on Bankruptcy Administration of the Judicial Conference. The active involvement of bankruptcy judges in determining and implementing the policy objectives of bankruptcy administration, if not as members, perhaps even as informal consultants, witnesses or advisors, would long ago have brought substantial improvements in the actual operation of the bankruptcy courts, which are almost exclusively the day-to-day domain of bankruptcy judges." Senate Subcommittee, Hearings, 20 February 1975, 91-92.
98. Ibid., 75. During the Commission deliberations and later, Weinfeld also challenged this while Will and Marsh both admitted that such practices occurred in some courts, though they were not endemic in the system. For example, Hearings of the Commission on the Bankruptcy Laws of the United States, 11 November 1972, 213-215.
99. Senate Subcommittee, Hearings, 20 February 1975-117-118. Cyr testified that because the courts of appeals were appointed by various presidents, their appointment of bankruptcy judges would likely be more on merit than politics. Ibid., 55.
100. Pub. L. No. 90-578, 82 Stat. 1107 (1968).
101. Guide to the Legislative History of the Federal Magistrate Judges System, Washington, D.C.: Administrative Office of the United States Courts, 1955, 16-17.
102. Federal Salary Act of 1967, Pub. L. No. 90-206, 81 Stat. 613 (1967).
103. "Referees' Salaries Increased," Journal of the National Conference of Referees in Bankruptcy 43 (Apr. 1969): 35.
104. Judicial Conference of the United States, Report of the Proceedings of the Judicial Conference of the United States, 13 March 1969, 16.
105. Jackson, Remarks at meeting of NARB.
106. After 1979 when the bankruptcy judges achieved a measure of independence from the district court and membership on the Committee on the Administration of the Bankruptcy System, bankruptcy judges and magistrates actively worked together to provide better benefits for both types of judicial officers. But at this time, bankruptcy judges wanted to distance themselves from the magistrates, whose positions and workload were wholly dependent on the needs of the district judges for assistance. The bankruptcy judges also saw their salaries as being held hostage to that of the magistrates and some may have feared that the enhancement of the status of bankruptcy judges would be hindered by having close relations with the magistrates. Peter McCabe, email to author, 1 March 2006, 1:48 p.m.
107. Chapters X, XI, and XII.
108. Robert B. Morton to Thomas L. Burgum, Deputy Counsel, Subcommittee on Improvements in Judicial Machinery, 2 June 1975, letter, Kline Collection. Senate Subcommittee, Statements of Judge Conrad Cyr and Judge Joe Lee, Hearings on S. 235 and S. 236, 12 November 1975, Committee Print, Part II, 920 et. seq. This data was refined and presented during the next two years at various hearings on bankruptcy reform in both the House and Senate.
109. Part of the justification used by Congress to remove this authority from the JCUS was that the JCUS had awarded identical salaries to all full-time bankruptcy judges, regardless of their workload or location. This was not the case for part-time bankruptcy judges, whose salaries varied from a few thousand dollars a year up to half of a full-time bankruptcy judges' salary (and perhaps even more).
110. The JCUS went on record (several times) that the Conference "strongly disapproved S. 582" to fix the salaries of referees at $36,000 "as not being consistent with the alignment of salaries of court officials as determined by the Judicial Conference at its October 1971 session" and followed this up with a letter to Senator Burdick insisting that salaries for all judges should be increased, not just those of bankruptcy judges. Judicial Conference of the United States, Report of the Proceedings of the Judicial Conference of the United States, 25 September 1975, 62.
111. William E. Foley to Quentin N. Burdick, 25 April 1975, letter; reprinted in Congress, Senate Committee on the Judiciary, Report to Accompany S. 582, 94th Cong., 1st sess, Committee Print, National Bankruptcy Archives, Biddle Law Library, University of Pennsylvania, Philadelphia, PA, Drabkin Papers, box 3, folder 3.
112. Ibid.
113. Pub. L. No. 94-217, 90 Stat. 192 (1976). Congress, Senate, Compensation of U.S. Magistrates, S. 2923, 94th Cong., 2nd sess.,
114. Congressional Record (5 February 1976): 2463. This may be because over two-thirds of the magistrates were part-time judicial officers (143 full-time compared to 322 part-time), whereas the composition of bankruptcy judges was heavily weighted to full-time judges.
115. Judicial Conference of the United States, Report of the Proceedings of the Judicial Conference of the United States, 25 September 1975, 67.
116. Senate Judiciary Committee, Report to Accompany S. 582, quoting Cyr testimony at the hearing of the Senate Subcommittee on 1 May 1975, 3-4.
117. Congress, House, Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary, Hearings on H.R. 31 and H.R. 32, 94th Cong, 1st sess, 7 May 1975, Committee Print, Serial No. 27, Part I, 3, 5-6, 20. Senate Subcommittee, Hearings, 11 November 1975, 897-899.
118. Congress, House, A Bill to establish a uniform law on the subject of bankruptcies, 95th Cong., 1st sess, H.R. 6, Congressional Record, 123, pt. 1 (4 January 1977): 125.
119. Congress, House, Remarks of Congressman Butler at debate, Congressional Record 123, pt. 27 (27 October 1977): 35448.
120. Congress, House, Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary, Hearings on HR. 31 and HR. 32, 94th Cong, 2nd sess, 2 April 1976, Committee Print, Serial No. 27, Part 4, 2034. Levin interview.