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Monday, March 27, 2006

"Is it Live or is it Memorex?"

Some of you may be old enough to remember the old ads referenced in the title to this post.  Not precisely le mot juste, but I'm just getting back into blogging after an enforced absence, so be patient.

That lead-in is really just by way of linking to this very interesting piece from Emily Bazelon on Slate.  Usually I'm not nuts about her stuff, but if she is right about this, it's gold.  Bazelon writes to note that Senators Graham and Kyl have filed an amicus brief in the Hamdan case, which will be argued tomorrow, citing a floor colloquy that the two allegedly engaged in during debate over the Detainee Treatment Act as evidence of their view that the Act strips the Court of jurisdiction over the appeal.  Bazelon suggests that the two leave the impression that the colloquy was live, when it was not -- when, in fact, it was inserted into the Record at the last minute, and certainly with little time for other members to notice it and object on the floor.  Bazelon suggests that the two make some effort in the colloquy itself to give the colloquy the appearance of having been delivered on the floor, and says that Senate officials confirm the colloquy was inserted, not live. 

I don't know whether it's true, but would like to hear more about this.  Note that the brief itself does not say that the two Senators engaged in the colloquy on the floor, but it certainly does nothing to dispel the impression, saying only, and somewhat cagily, that "the Congressional Record is presumed to reflect live debate except when the statements therein are followed by a bullet . . . or are underlined."  That is what we older folk call a "non-denial denial."      

So, were they or weren't they engaging in a live colloquy?  I can't say.  If Bazelon's article is correct -- and I can't warrant that it is -- score one for the opponents of the use of legislative history as an interpretive tool.  Although I might add that one needn't oppose legislative history to think it improper and undignified for two Senators to (if, again, they actually did so) mislead the Court in a filed brief on the question of whether they were or were not engaged in an actual floor colloquy. 

(I must also say that I'm not student of Graham or Kyl's jurisprudence, but wonder whether they have stated any views about how to go about interpreting statutes.  I would have thought Graham, at least, would have paid lip service to textualism as an approach to judicial work.  Has he?  Of course, the same "interpret the history, not the statute" approach was at work in the Schiavo case, too, albeit from different members.)

Posted by Paul Horwitz on March 27, 2006 at 10:15 PM | Permalink


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If Bazelon is correct that the inserted colloquy includes crafty scripted language intended to suggest it was live, then creating that false impression is deceptive and troubling. But of course many truly live colloquies are delivered to a nearly empty chamber anyhow, so the distinction is a lot less important than it first appears.

Not all legislative history is created equal. Floor statements of all kinds (in contrast to, say, committee reports) represent only the views of those legislators who made the statements. That can be useful for interpretation, but far from definitive. So Bazelon merely states the obvious when she says: "The colloquy is evidence of what Kyl and Graham thought about the meaning of the [statute]. But it doesn't show that any other member of Congress shared their understanding."

The Supreme Court now has some evidence of what Graham and Kyl thought, and other evidence of what others thought -- including, says Bazelon, the contrary views of Democrats such as Carl Levin. I think all that data properly goes into their interpretive mix. But even without any of the alleged sleight of hand, a floor colloquy between two like-minded senators is hardly the strongest legislative history (and Bazelon overstates the "significant weight" that Levin's statements would carry if they were the only ones on point). I would predict that the likely result of this conflicting evidence is that even those justices who are more comfortable with legislative history would conclude that in this instance it doesn't add any greater clarity. And that seems like the appropriate course in such circumstances -- but hardly a condemnation of all legislative history in all cases.

Posted by: William McGeveran | Mar 28, 2006 10:40:51 AM

I'm not so sure it's score one for opponents of leg history. First of all, if Bazelon's right, they got caught - so (one can hope) no harm done. Second, if Bazelon's right, the very fact that the distinguished Senators had to pull this kind of stunt at all is itself an informative piece of legislative history - one Hamdan's sure to jump on. Deceptive, sure; but telling.

Posted by: anon | Mar 28, 2006 12:32:12 AM

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