Appointed or anointed: Judges, congress, and the passage of the bankruptcy act of 1978 part three: On the hill

American Bankruptcy Law Journal

Volumn 81, Issue 3, 2007, Pages 341-373

  Mund, Geraldine ^a  

^a Central District of California ^*  (United States)

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EID: 36348931159     PISSN: 00279048     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (106)

1. Levin interview. Ken Klee, who worked for the Republicans, described Democrat Edwards as "a very good chairman, one of the most honorable people I've ever met." Klee interview. Frank Moore, assistant to the president for congressional relations in the Carter administration, concurred with Klee's assessment: "Edwards is just so respected." Frank Moore, phone interview by author, tape recording, 12 October 2005.
2. Don Edwards, phone interview by author, tape recording, 20 June 2003. Klee interview. Alan Parker, General Counsel to the House Judiciary Committee, reported that "Chuck [Wiggins] was a wonderful man. One of the few Republicans that I really liked." Alan Parker, phone interview by author, tape recording, 7 April 2003.
3. As Klee recalls: "Caldwell Butler had a great understanding of what was going on, and I really think, you know, deep down inside there was an element where he just wasn't sure he wanted to trust staff to reform the bankruptcy laws . . . unless he understood line by line what was happening.... I give him lots of credit for investing the personal time and energy to make sure the bill was proper." Klee interview. Republican Butler also had the respect of the Carter White House: "He's a good guy, very strong opinions." Frank Moore interview.
4. Robert Feidler, phone interview by author, tape recording, 17 June 2003.
5. According to Richard Levin: "[W]e had a series of mark-ups starting in, I think around the beginning of March that lasted until mid to late May of '77 where the subcommittee went through the bill, section by section, subsection by subsection, and reviewed all of the policy decisions that had been made and all the decisions of the bill. . . . But by the time we got through the hearings, there was a full support of the subcommittee, both parties, for the Article III courts and the bill as a whole and we reported it to the committee and it went to hearing at committee." Richard Levin interview.
6. Congress, House, Markup Session of the Committee on the Judiciary on H.R. 8200, 14 July 1977, 5.
7. Congress, House, Markup Session of the Committee on the Judiciary on H.R. 8200, 15 July 1977, 44, 51. Danielson, who had served as a bankruptcy trustee before being elected to Congress, was urged by Attorney General Bell to place the United States Trustee outside the Department of Justice. Congress, House, Markup Session of the Committee on the Judiciary on H.R. 8200, 19 July 1977, 70; Congress, House, Amendment offered by Congressmen Danielson and Railsback, Congressional Record 123, pt. 28 (28 October 1977): 35680. It is rather remarkable that the Office of the United States Trustee was placed in the Department of Justice when neither the Attorney General nor the Judicial Conference wanted it to be there.
8. The dynamics of the argument were particularly interesting. M. Caldwell Butler, a Republican, stated that though he and the rest of the subcommittee had strongly resisted the creation of a separate Article III court, based on the expert opinions that they had received they were now convinced that a separate Article III court was a necessity. Robert McClory, the ranking Republican, who was from Illinois as was Railsback, immediately voiced his opposition to the Railsback amendment. This was followed and repeated by Democrats Don Edwards and Robert Drinan. Congress, House, Markup Session of the Committee on the Judiciary on H.R. 8200, 15 July 1977, 46-51. No doubt this unanimous support by the Subcommittee members, who had spent months studying the bill, is what swayed the vote.
9. Tom Railsback to Wesley Brown, 15 September 1977, letter, Weinfeld Collection. It is unclear where Railsback's concern originated. Ken Klee recalls that in May 1977 - four months before Railsback's letter to Brown - Railsback told Klee that "the Chief Justice had 'given him hell' about the bankruptcy legislation and that we would have an uphill battle because of the Article III bankruptcy court." Railsback also reported that the American Bar Association was about to withdraw its support of the bill. Klee, 13 May 1977 memo.
10. Wesley E. Brown to Tom Railsback, 26 September 1977, letter, Weinfeld Collection. The twelve-year term had been recommended by the JCUS since at least 1960. Judicial Conference of the United States, Report of the Proceedings of the Judicial Conference of the United States, 15-16 September 1977, 73. The insistence by the district judges on a legal mandate that they have direct input into the appointment process if it was to be at the circuit level may have been due to a lack of cordiality between circuit and district judges, which one chief district judge described as "backbiting." William C. Keady, chief judge of the United States District Court for the Northern District of Mississippi, to Dennis DeConcini, 30 June 1978, letter, Weinfeld Collection. On the other hand, Ruggero Aldisert contends that the district judges wanted to be part of the appointment process because they truly wanted outstanding people to be selected. Aldisert interview, 27 March 2006.
11. Congress, House, Amendment offered by Congressmen Danielson and Railsback, H.R. 8200, 95th CGong., 1st sess., Congressional Record 123, pt. 28 (28 October 1977): 35673.
12. Kenneth N. Klee, "Legislative History of the New Bankruptcy Law," DePaul Law Review 28 (Summer 1979): 949.
13. Danielson/Railsback Amendment Debate, Congressional Record 123, pt. 28 (28 October 1977): 35673-76. H.R. 8200 had been voted 7-0 out of the Subcommittee and 23-8 out of the full House Judiciary Committee. Remarks of Congressman Edwards, Congressional Record 123, pt. 27 (27 October 1977): 35446.
14. Danielson/Railsback Amendment Debate, Congressional Record 123, pt. 28 (28 October 1977): 35684-87.
15. Ibid., 35689.
16. Ibid., 35691.
17. Levin interview. Interestingly, Danielson and Railsback both voted to pull the bill, though they must have known that Edwards would try again to pass Article III and an independent court. Ibid., 35692-93.
18. Klee interview. Klee, Levin and Parker are convinced that Robert Kastenmeier (D-WI) acted as Chief Justice Burger's surrogate and encouraged Railsback and Danielson to propose and pursue this amendment, but there is no direct evidence of this. One theory is that Kastenmeier was influenced by Burger and supported his position, but did not want to directly confront Edwards since Kastenmeier and Edwards were close friends and, in fact, played tennis every day. Railsback interview, Parker interview. Another concept is that Kastenmeier was unhappy because the bankruptcy bill was not assigned to the subcommittee that he chaired. Parker interview; Peter Rodino, phone interview by author, tape recording, 29 May 2003. Kastenmeier recollects an unofficial breakfast when Burger came to the House to meet with Kastenmeier's subcommittee during the lead-up to the 1984 bankruptcy bill, but denies any particular activity as to the 1978 bill or the Danielson/Railsback amendment. Robert Kastenmeier, phone interview by author, tape recording, 23 November 2005.
19. Levin summarizes the thinking of his colleagues as follows: "We felt that if we were going to reverse the vote we had to actually probe the issue more, hold hearings, beef up the record, so that we could come back and say 'we learned more and here's why we believe it's the right answer' rather than just saying 'we're going to go out and politic for two months and then trying to change the vote.' We might have been able to do that, but again having a better legislative record would help us in supporting what we were trying to do. So we scheduled hearings just on the issue of Article III courts for December of "77-" Levin interview.
20. No Senate bill was pending in the 95th Congress, which had convened in 1977. According to Feidler, the delay was due to the reorganization of the Subcommittee when Burdick moved to Appropriations and freshman Senator DeConcini took over as chair. Then they decided to wait until the House acted, "recognizing that it had a very good product." They intended to introduce the Senate bill shortly after the House passed its version, but the derailment of the House bill due to Danielson/Railsback caused DeConcini to introduce S. 2266 on October 31, 1977- "Senate Bill Borrows From House," an adaptation of the remarks of Robert E. Feidler at the meeting of the National Conference of Bankruptcy Judges in Quebec, September 1977, National Conference Newsletter (Nov. 1977): 4.
21. Dennis DeConcini to Warren Burger, 1 November 1977, letter; reprinted in Senate Subcommittee, Hearings, 28 November 1977, 876. Warren Burger to Dennis DeConcini, 7 November 1977, letter; reprinted in Senate Subcommittee, Hearings, 28 November 1977, 878.
22. Senate Subcommittee, Hearings, 28 November 1977, 411-12.
23. Ibid., 424.
24. Ibid, 418.
25. [W]e do not have referees on the committee," Weinfeld stated. "The committees are appointed by the Chief Justice. The Chief Justice has appointed the committees through the years." But Weinfeld was forced to admit that there was no prohibition against bankruptcy judges sitting on JCUS committees and that lawyers and professors were members of some committees. Ibid., 421.
26. Ibid.
27. Ibid., 434-35.
28. Ibid., 429-30.
29. A few weeks later, Judge Weinfeld told the House Subcommittee that bankruptcy judges should have law clerks if they demonstrated a need. Later that day Bankruptcy Judge David Kline, president of NCBJ, testified and attributed Weinfeld's comment to Judge Brown, stating that Judge Brown had modified his views about law clerks for bankruptcy judges since two weeks earlier Brown had testified before the Senate, saying "in substance, 'Why should they [bankruptcy judges] have them [law clerks]? That's why we appointed them.'" House Subcommittee, Supplementary Hearings, 13 December 1997, 192. The issue of law clerks for bankruptcy judges was not new. In 1972, the JCUS Bankruptcy Committee discussed the request of NCRB for law clerks. At first the committee members commented that the referees could claim assistance from the district judges' law clerks and they "would certainly get unpreferred attention.™ But when it was seriously suggested that the Committee try to arrive at a policy, the discussion ended abruptly when one judge jokingly asked whether they were really going to discuss law clerks for referees. "Untitled notes and partial transcript of the meeting of the Committee on the Administration of the Bankruptcy System," 10 July 1972.
30. Senate Subcommittee, Hearings, 28 November 1977, 436.
31. After the Senate hearing, Bob Feidler, a Senate staffer, wrote to David Kline, president of NCBJ: "There is no question that you folks came across as being infinitely better prepared, spoken, and more reasonable than the representatives of the Judicial Conference. I hope we can bring everything together for speedy action next session." Robert E. Feidler to David Kline, 6 December 1977, letter, Kline Collection.
32. Aldisert interview, 27 March 2006. Aldisert's recollection to the author that all questions were to be directed to him is somewhat reflected in the transcript of the hearing. Nonetheless, as in the Senate, Brown answered most of the questions in the House. House Subcommittee, Supplementary Hearings, 13 December 1977, 127-160. Further, the transcript does not show the interaction that Aldisert reports with Congressman Rodino and it appears that Rodino was not present at the hearing. It is possible that Aldisert is confusing this appearance with testimony after the Supreme Court had declared the jurisdictional system unconstitutional and Rodino chaired the passage of the Bankruptcy Amendments and Federal Judgeship Act of 1984.
33. Wesley E. Brown to John R. Brown, chief judge of the Fifth Circuit Court of Appeals, 3 July 1978, letter, Weinfeld Collection. William Weller, legislative liaison officer for the AO, tried to reassure Judge Weinfeld after the Ad Hoc Committee testified before the House Subcommittee: "Although I know that several members of the Ad Hoc Committee were quite disappointed with the Senate presentation, I think it fair to say that it was helpful, not harmful. Certainly the presentation of the Conference's views before the House in mid-December went far better than any of us had any reason to anticipate." William James Weller to Edward Weinfeld, 20 December 1977, letter, Weinfeld Collection. On the letter is a handwritten note: "Judge - You will be pleased to learn that several House staff attorneys who were in the audience praized [sic] your testimony - and heeded it."
34. House Subcommittee, Supplementary Hearings, 13 December 1977, 151.
35. Ibid., 12 December 1977, 14.
36. Ibid, 55. No doubt Edwards used the term "horror stories" to include issues of the bankruptcy ring, as well as the high cost of bankruptcy litigation due to the limited jurisdiction of the bankruptcy judges.
37. Ibid., 13 December 1977, 90-91.
38. Ibid., 92.
39. Ibid., 164, fn. 9. This analysis was not hysteria or paranoia on Cyr's part. It was clearly Burger's intent to resolve the independence of the bankruptcy judges by simply eliminating that office. Klee, 13 May 1977 memo.
40. House Subcommittee, Supplementary Hearings, 13 December 1977, 204. Burger had a justifiable reason for wanting to limit the numbers of the Article III judiciary, though he and the Ad Hoc Committee were never successful in explaining it to Congress. Basically he realized that because federal judges received lower compensation than attorneys who had been their law clerks just a few years earlier and that these judges were committed for life with no hope of substantial compensation, it was the status of being part of a small, select group that kept a stable judiciary and that would be threatened by a rapid expansion in numbers. Cannon interview. But this does not explain the refusal to allow bankruptcy judges to have representatives on the JCUS or even to serve on JCUS committees.
41. Klee, "Legislative History," 950. Congress, House Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary, Report on Hearings on the Court Administrative Structure for Bankruptcy Cases, December 12, 13, 14, 1977, 95th Cong., 1st sess., January 1978, Weller Collection.
42. Levin interview.
43. List of lobbying assignments, undated, Klee Collection, box 8, folder 17. List of all representatives, votes, whip assignments and comments, undated, Klee Collection, box 16, folder 21. David Kline, "Quick Summary (as of 1/21/78 at 11:00AM)," memo, Kline Collection.
44. William James Weller to Wesley E. Brown, 26 January 1978, letter, Weinfeld Collection.
45. William James Weller to Wesley E. Brown, 2 February 1978, letter, Weinfeld Collection.
46. THe NAACP and Black Caucus supported an independent court at the request of Congressmen Rodino and Edwards. Ken Klee, email to author, 22 March 2007, 9:07 a.m. The American Bankers Association did not actively support Article III status for bankruptcy judges, but strongly favored an independent court. Senate Subcommittee, Hearings, 29 November 1977, 594. The American Bankers Association thought that there would be a higher caliber judge in a independent court, which would improve the speed, predictability, and quality of the rulings. Richard Levin, email to author, 22 March 2007, 7:54 p.m.
47. Congress, House, Debate on H.R. 8200, 95th Cong., 2nd sess., Congressional Record 124, pt. 2 (1 February 1978): 1783-1804. William Weller reported: "In October Mr. Edwards went to the floor unpre-pared, and we were lucky; yesterday he went to the floor fully prepared, and we were soundly defeated." (Emphasis in original.) Weller to Brown, 2 February 1978 letter. Weller continued that Edwards' staff deserved a great deal of credit for the way they orchestrated this. Since so many members had already committed themselves to the leadership, there was no debate on the merits, which would merely have been a waste of time. "Several Members were 'turned' by the argument that his [Railsback's] amendment was nothing more than the judges' fourth quarter attempt to 'gut' a bill in which the Committee had invested years of labor." Ibid.
48. According to Weller, the staff attorneys had convinced many House members that the Senate would pass Ü bill similar to the Railsback amendment, so they should support the House Committee now and let the conferees resolve the problem later. Ibid.
49. Weller expressed his concern about the Senate: "Although the referees do not now have the Senate leadership behind them, as they have had the House leadership behind them since last February, we cannot assume that that advantage will remain ours after the subcommittee acts in early April. Of the 17 Senate Committee Members, at least 6 might be won over to an Article III concept if the referees are ambitious and tenacious and we fail to blunt their efforts." (Emphasis in original.) Ibid.
50. Feidler interview, 17 June 2003. Harry Dixon agrees: I'd say we almost never had a disagreement, on the Senate side." Harry Dixon interview. The uniqueness of this bill is reflected in a dialogue between the author and Frank Moore, who was in charge of congressional relations in the Carter White House. He responded to the identification of DeConcini and Wallop in the context of being co-proponents of the bill as a "strange pair." Frank Moore interview.
51. "Bankruptcy Reform: Then and Now," 303.
52. During the first nine months of 1977, there had already been at least two full-fledged filibusters in that Committee. Feidler, "Senate Bill Borrows From House."
53. House Subcommittee, Supplementary Hearings, 14 December 1977, 239.
54. Ibid., 13 December 1977, 209.
55. Ibid., 211.
56. Ibid, 14 December 1977, 239.
57. Feidler Interview, 13 August 2003. (Emphasis in the original.) In March 1978, Edwards told Murray Drabkin that he was convinced that DeConcini would not support Article III. David Kline, "Memorandum to the File (3/24/78)," Kline Collection.
58. Several bankruptcy judges met with Eastland to let him know that no matter what appointment process was used, they supported the bill. As Joe Lee now recalls, "He was sitting there at his desk, smoking a big cigar, and he said, 'Boys, do you know who appoints federal judges?' And I believe Conrad [Cyr] was the one that said, 'Senator, the president does.' And he said, 'No, son. Senators appoint federal judges.' So it didn't appear that he was necessarily opposed to presidential appointment." Lee interview, 20 October 2005.
59. Klee interview. (Emphasis in the original.) Klee continues: "They don't like federal judges except the ones they appointed, they like. So, having to take a position that would not increase the number of Article III judges is something that a lot of senators just naturally liked and then they had the pressure from their friends that they appointed to the bench so they took that position." Ibid.
60. Omnibus Judgeship Act of 1978, Pub. L. No. 95-486, 92 Stat. 1629 (1978). As finally passed, this bill provided for 111 additional district judges and thirty-six circuit judges, as well as dividing the Fifth Circuit so as to create a new Eleventh Circuit.
61. "Bankruptcy Reform: Then and Now," 307.
62. As DeConcini remarks in hindsight, "I thought district judges had far more capacity and understanding and knowledge of local nominees for bankruptcy judges and that's where I thought it should be and I felt very strongly about that." Dennis DeConcini, phone interview by author, tape recording, 13 May 2003.
63. Not only were the findings of the Commission clear as to this problem, but it was brought home to DeConcini when a district judge testified that after a nationwide search for the best person to serve, his choice of trustee for the Rock Island Railroad Chapter X case was the judge's former law partner. Dixon interview.
64. Wesley Brown, "Legislation to Revise the Bankruptcy Laws," address to the Fourth Circuit Judicial Conference, date uncertain, but probably 23 June 1978, Weinfeld Collection. Joseph F. Spaniol, Jr. to Wesley E. Brown, 16 June 1978, letter, Weller Collection.
65. Once again Brown failed to allow the judiciary to take any responsibility when he changed the draft of this speech, which had blamed the judiciary for failing to educate Congress.
66. Klee, "Legislative History," 951-52.
67. Richard Levin to Don Edwards and Caldwell Butler, 13 July 1978, letter, Klee Collection, box 10, folder 20.
68. Ibid.
69. Fifty-two matters were labeled as "issues for member discussion and decision," four were "technicals related to major issues," thirty-three were "issues for staff discussion after member consultation," thirty-eight were "technicals," thirty-one were "court and administrative structure," thirteen were "tax issues," and there was one "commodity broker" issue. "Issues for Member Discussion and Decision," undated but about 10 September 1978, memo, Klee Collection, box 10, folder 20.
70. Levin, "Bankruptcy Reform: Then and Now," 308. There actually was a single reorganization chapter in both bills, but the Senate version had two tracks: one for large publicly held companies, which would require that a trustee be appointed, and the other for the remaining cases, where current management would continue in control. The Senate backed down and allowed all chapter 11 corporations to be treated the same, although there could be the appointment of an examiner in the large publicly held ones. Richard Levin, email to author, 7 June 2006, 1:10 p.m. Senate Debate on the Uniform Law on Bankruptcies, 95th Cong., 2nd sess., Congressional Record 124, pt. 25 (5 October 1978): 33990. Levin subsequently stated: "On the House side we were able to get a few concessions out of the Senate on some of the substantive law, in conference, in exchange for giving up Article III. But they were very few because, as the Republicans and the Democrats weren't far apart, the House and the Senate weren't very far apart on this bill either." Levin, "Bankruptcy Reform: Then and Now," 308. Feidler, ibid.
71. In fact the energy bill and an income tax bill were the last ones dealt with in the 95th Congress and required that the Senate conduct an unusual Sunday session, http://www.senate.gov/pagelayout/reference/five_column_table/ Sunday_Sessions.htm, (24 April 2005).
72. Feidler interview, 17 June 2003. The Congressional Record shows that the bill was called at the end of the morning session, but Senator Byrd managed to hold off discussion until the afternoon by which time DeConcini had arrived to go forward with the bill. Congress, Senate, 95th Cong., 2nd sess., Congressional Record 124, pt. 21 (7 September 1978): 28254-57.
73. Klee, "Legislative History," 952. Congressional Record 124, pt. 21 (7 September 1978): 28257.
74. U.S. Constitution, Art. I, sec. 7; Klee, "Legislative History," 952. Congress, Senate, 95th Cong., 2nd sess., Congressional Record 124, pt. 23 (22 September 1978): 30960.
75. Unless otherwise noted, the information about the maneuvering to get a compromise bill comes from a summary memo prepared by Kenneth Klee. Ken Klee to File, re: "Final Passage of H.R. 8200," 9 October 1978, memo, Klee Collection, box 4, folder 6.
76. Harry Dixon attributes the lack of interest in this bill by senators and staffers to the complex and somewhat arcane nature of the subject matter. Dixon interview. A conference report is limited to a compromise that falls between the House-passed bill and that passed by the Senate. As Bob Feidler later described it, "if one body said six and one body said four, the scope of the deal has to be somewhere between four and six, you can't pick eight." So this compromise could not take place within a formal conference with a conference report. Feidler interview, 13 August 2003.
77. Klee to File, 9 October 1978 memo.
78. During the hiatus before the conferees were appointed, Dixon, Feidler, Klee, and Levin spent a week at the old Congressional Arms Hotel, a House annex, drafting the final deals that they made on the remaining issues. "We did that to hide from the lobbyists, so we couldn't be lobbied," Dixon recalls. Working from side-by-sides, which printed the two versions of the bill next to each other for comparison purposes, they traded compromises to make the final version work. Dixon interview.
79. Klee, "Legislative History," 953. Feidler interview, 17 June 2003.
80. 80The Commission had set a fifteen year term, but S. 2266 reduced this to twelve years, which is what the JCUS and the Ad Hoc Committee preferred. The choice of fourteen years came from a suggestion of Judge Aldisert, based on the finding of an AO study that the average length of service of a district judge before taking senior status was fourteen years. Aldisert argued that a fourteen-year term would be equivalent to a lifetime appointment. Ruggero Aldisert, phone interview by author, 13 January 2003.
81. Although Klee reports eight issues, there were actually either seven or nine items on the agenda for the September 26 meeting (five dealing with non-court matters - first meeting of creditors, exemptions, reaffirmations, the definition of a farmer, and discharge of student loans - and four under the category "courts.") "House Senate Meeting Sept. 26, 1978," handwritten notes, Klee Collection, box 10, folder 20.
82. Ibid.
83. The legislative counsel is the office in the House whose function is to help the members and committee offices draft bills. It also provides technical help and communication with the GPO. Doug Bellis, an excellent drafter, was Levin's principal contact. Levin email, 7 June 2006. Once again, the truly bipartisan nature of this bill is demonstrated by the fact that Klee and Dixon were hired by the Republicans, but drafted the public statements for the Democrats.
84. Reaffirmation is a method by which a debtor in bankruptcy exempts a debt from discharge. The provision in the bill required that if the debtor were not represented by an attorney in negotiating a reaffirmation agreement, the judge must approve it. Household Finance and other secured creditors wanted debtors to be able to commit to repay their discharged debts without court intervention (and limitation). Klee email, 22 March 2007.
85. In that cloakroom meeting, Hyde confided to Klee that "Tom Fitzgerald was a disagreeable person in so far as he pretended to dictate to the Congressmen how they should write the laws rather than assuming that the Congressmen would be writing the laws directly." Klee to File, 9 October 1978 memo. Ironically, twenty-five years later when Henry Hyde was chair of the House Judiciary Committee during the creation of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, substantial evidence supported the widely held belief that this new law was written by lobbyists rather than congressional staff.
86. Congress, House, Congressional Record 124, pt. 24 (28 September 1978): 32391-2.
87. William James Weller to S. 2266 Bill File, re: "Bankruptcy Reform Act," 29 September 1978, memo, Weller Collection. "Burger Shouted at Him in Clash Over Legislation, Senator Says," Los Angeles Times, 7 October 1978, part I, p. 10. DeConcini disagreed with Burger on the manner in which Burger had contacted him on the bankruptcy issue and he found that Burger had a difficult personality. Nevertheless, DeConcini liked and respected Burger. DeConcini interview.
88. Joe Lee reports a meeting with DeConcini: "DeConcini was telling us about these phone calls, and the chief justice fussing about this appointment system. He said he [DeConcini] sort of assured them that they would go for this court of appeals appointment. But then he winked at us and said, 'I didn't tell him what might happen at conference.'" Lee interview, 20 October 2005. (emphasis in original)
89. Weller to S. 2266 Bill File, 29 September 1978 memo. Klee to File, 9 October 1978 memo.
90. John Jerome recalls, "I was active then in having the banking community support the legislation on the side of the gods rather than the way is [sic] was done recently [on the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005] and we used the correspondent banks in this effort. We very much wanted the Bankruptcy Court to be an independent judiciary. We reasoned that it would raise the prestige and quality of a Court which was making very significant commercial decisions." John J. Jerome, email to author, 1 May 2006, 2:54 p.m.
91. Klee to File, 9 October 1978 memo. Richard Levin does not recall whether he gave this advice and, if so, whether Edwards followed it. Levin email, 7 June 2006.
92. Klee to File, 9 October 1978 memo.
93. During the delay, Joe Lee and Senator Wallop were required to put out fires as to the SEC and demands of the finance companies. Edwards agreed with HUD to a modification taken from the Senate bill, which required more last minute negotiations between the members and the staff. Klee feared that any amendments made by the Senate would require a conference, with its delay and opportunities to bring about even more amendments and disagreements. Ibid.
94. Weller to S. 2266 Bill File, 29 September 1978 memo.
95. Bell interview. Bell had followed the bill and was well aware of the terms of the compromise. Judy Wegner to John M. Harmon, Assistant Attorney General, Office of Legal Counsel, 29 September 1978, memo, National Archives, accession no. 060-82-0199, box 5 of 37 at Archives II location: stack B190/31/ 17/2.
96. House Subcommittee, Hearings, 2 April 1976.
97. House Subcommittee, Supplementary Hearings, 14 December 1977, 293-94. "One of the things that I was worried about was the jury trials by bankruptcy judges," Bell recounts. "I thought that that was really taking over a function of the Article III district judges." Bell interview.
98. Klee to File, 9 October 1978 memo. "HR 8200 Conf., the Deal," undated, handwritten notes, Klee Collection, box 10, folder 20. While it is not obvious, the Omnibus Judgeship Bill (and perhaps the proposed Magistrate Act) nonetheless had an effect on the bankruptcy negotiations, for the same players were involved in compromising the bankruptcy bill as participated in the conference that led to final passage of the bill that created more judges for the district and appellate courts, and in the conference that failed to reach agreement on expanding the jurisdiction for magistrates. DeConcini was in the middle of it all and needed to keep good relations with his House and Senate colleagues in order to accomplish as many of these goals as possible. Bob Feidler, phone interview by author, tape recording, 14 August 2006. It is rather amazing that DeConcini, a freshman senator, was as successful as he was. The proposed Magistrate Act of 1977, which would have provided expanded civil and criminal jurisdiction to United States magistrates and have required that the JCUS promulgate standards for their appointment, failed in conference because the House had attached a floor amendment to the bill that would terminate diversity jurisdiction in federal courts. The Federal Magistrate Act of 1979 passed during the next Congress without the diversity amendment. Guide to the Legislative History of the Federal Magistrate Judges System, 27-34.
99. Kline interview, 30 November 2004.
100. "Telephone Conversation - Senate Passage of H.R. 8200, October 5, 1978," transcript, Klee Collection, box 4, folder 7.
101. DeConcini had also been a key player in the Omnibus Judgeship Act and the Magistrates Act, both of which were supported by the Chief Justice. Bob Feidler, who knows Senator DeConcmi much better than does the author of this piece, disagrees as to the interpretation of DeConcini's remarks as a "back-handed compliment." According to Feidler, "they likely were genuine and an effort on his part to, despite the harsh words the Chief had with him, give him due credit for all the support Burger had given through-out the year on many other bills before the subcommittee of interest to DeConcini and the judiciary." Bob Feidler, email to author, 6 July 2006, 8:35 p.m.
102. Congress, Senate, Debate on the Uniform Law on Bankruptcies, Congressional Record 124, pt. 25 (5 October 1978): 33989-34019.
103. These two provisions were to limit the appointment of a clerk only if "need" were shown, and that during the transition period the chief circuit judge could remove a bankruptcy judge on recommendation of a merit screening panel.
104. In an interview with the author, Robert Feidler recounted what happened: "Now a new deal had to be struck and so now the Senate had to make an amendment to the House amendment, to the Senate amendment, to the House amendment. But still a bill has to have identical language before it goes to the president. So now that bill goes to the House and that's where the House had their choice. They could have not taken it up and killed it, they could adopt it, which is what they did, or in theory they could have amended it and sent it back to the Senate. But at that point literally, I think we probably had mere hours left in the session and everybody kind of understood that the Senate was in no position to take up another bill at that point in the session and act on it." Robert Feidler interview, 17 June 2003. Congress, House, Congressman Edwards speaking for Passage of the Bankruptcy Act, H.R. 8200, 95th Cong., 2nd sess., Congressional Record 124, pt. 25 (6 October 1978): 34144-45. The issue of a clerk for each bankruptcy court, appointed by the bankruptcy judges, was a senstitive issue. Only a month before, congress had voted to deconsolidate the clerks offices of the bankruptcy and district courts. Thus the loose standard of "need" was no doubt seen by Edwards and others as an
105. Klee to File, 9 October 1978 memo. According to Joe Lee, "There was only one guy stood up and objected. . . .[W]hen he took the floor he said 'I don't think we should pass this bill until the Senate acts on reform to the immigration laws that have passed the House and tied up over in the Senate.' Well, they took a pause after that and went on to other business and a lot of people cornered this guy and, up in one of those side rooms off the House floor, talked to him and said, 'if you want to hold something hostage for that, the bankruptcy bill is a bad choice.' Finally, he relented and the bill passed the House on the consent calendar." Lee interview, 13 June 2003.
106. Klee, "Legislative History," 956.