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University of the
District of Columbia Law Review
David A. Clarke School of Law
Volume 11 Winter 2008 Number 1
LETTER FROM THE EDITOR- IN -CI-II E F
Charles C. Jealle
DISTRICT OF COLUMBIA DEMOCRACY AND THE
TIDRD BRANCH OF GOVERNMENT
PROLOGUE
.lohn W Nields & Timolhy.l. May
ESSAYS
THE L EGAL AND CONSTITUTIONAL F OUNDATI ONS FOR
THE DISTRICT OF COLUMOIA J U DICIAL BRANCH
WH O SHOULD ApPO INT J U D GES OFTIIE D. C. COURTS?
Sleven M. ScllIIeebaWIl
Charles A . Miller
SHOULD TilE D ISTRICT OF COLUMBIA H AVE R ES PONSIBI LITY
FOR THE PROSECUTION OF CRI M INAL OFFENSES ARISI NG U N D E R
THE DISTllleT OF COLUMBIA CODE?
ORGAN IZAT ION, B U D GET ING,AND FUNDING OFTI I E O ISTRlcr
OF COLUf\'IBIA'S L OCAL COURTS
Johll PaYlO 1I
Peler R. Kolker
REMARKS
K EYNOTE SPEAKER AODH: ESS CO llgres~wo '-nall Eleanor !-Iolmes Norloll
A T'-IIRTYw YEAR R ET I~OS P EcnVE
Th e llollorable C regory E. Mize (ReI')
THE DISTRICT OF COLUf\IBIA'S J U DICIAL SELECTION
PROCESS: THE G OOD, T H E B AD, AND T H E UGLY
COMMENTS ON WI IO ApPO INTS D. C. J UDGES
DEMOCRACY ABROAD
P(l/ricia M. Wonlty
Dalliel A. ReZlleck
COMMENT
PRIDE. PREJU DICE. AND JAPAN'S UNIFIED STATE
Suzanne M. Sable

University of the District of Columbia
David A. Clarke School of Law
Law Review
Volume 11 Winter 2008 Number 1
LElTER FROM THE EDITOR-IN-CHIEF •••••••••••••.•.... Charles G. Jeane 1
DISTRICT OF COLUMBIA DEMOCRACY AND THE
THIRD BRANCH OF GOVERNMENT
PROLOGUE ••••••.•.•...••.••••.•.•.•.•. John W. Nields & Timothy J. May 5
ESSAYS
THE LEGAL AND CONSTITUTIONAL FOUNDATIONS FOR THE
DISTRICf OF COLUMBIA JUDICIAL BRANCH .• Steven M. Schneebaum 13
WHO SHOULD ApPOINT JUDGES OF THE
D.C. COURTS? • • • • . • • • • • • • • • . • • • . • . . . • . . • • • • • • • • •• Charles A. Miller 25
SHOULD THE DISTRICf OF COLUMBIA HAVE RESPONSIBILITY
FOR THE PROSECUTION OF CRIMINAL OFFENSES ARISING
UNDER THE DISTRICf OF COLUMBIA CODE? .•.•••••••• John Payton 35
ORGANIZATION, BUDGETING, AND FUNDING OF
THE DISTRICf OF COLUMBIA'S LOCAL COURTS •.•••. Peter R. Kolker 43
REMARKS
KEYNOTE SPEAKER
ADDRESS •••••••••••.••...• Congresswoman Eleanor Holmes Norton 55
A THIRTY-YEAR
RETROSPECfIVE ••••••••••••• The Honorable Gregory E. Mize (Ret.) 61
THE DISTRICf OF COLUMBIA'S JUDICIAL SELECfION PROCESS:
THE GOOD, THE BAD, AND THE UGLY .•...•.•.•• Patricia M. Worthy 63
COMMENTS ON WHO ApPOINTS D.C. JUDGES •••.• Daniel A. Rezneck 69
COMMENT
DEMOCRACY ABROAD
PRIDE, PREJUDICE, AND JAPAN'S UNIFIED STATE •. Suzanne M. Sable 71

University of the District of Columbia
David A. Clarke School of Law
Law Review
Volume 11
Winter 2008
Number 1
Melanie Acuna
Julie Akemann
Craig Batchelor
Yancey Burns
Tess Davis
Jenny Fein
Meredith Gitangu
Vanessa Hagen
2007-2008 EDITORIAL BOARD
Editor-in-Chief
Charles Jeane
Publications Editor
Suzanne Sable
Managing Editor
Amanda Dunlap
Articles Editor
Jennifer Karr
Symposium Editor
Wayne Thmer
Notes Editor
Jason Hart
2007-2008 Senior Editors
Stacy Cash
Samuel Kanupp
Wendell Mackey
Jasmine Mize
Alyssa Patzoldt
2007-2008 Associate Editors
Molly Hoffman
Nicole Mailman
Melissa Mathu
Maria Mier
Keri Nash
Erik Pinsonnault
Ibidun Salaam
Ariel Shea
Faculty Advisors
Helen Frazer
Robert Burgdorf Jr.
Matthew Fraidin
William McLain
Phillip Sherman
Darren Shultz
Elena Sotnikova
Beth Stephens
John White
Morgan Whitlock
K warne Willingham
Rebecca Wrightson

University of the District of Columbia
David A. Clarke School of Law
ADMINISTRATION
KATHERINE S. BRODERICK, B.A., J.D., M.A.T., Dean of the Law School and Professor of
Law
ANN B. RICHARDSON, B.A., J.D., Associate Dean for Academic Affairs and Associate
Professor of Law
JANICE B. WASHINGTON, B.A., M.A., M.B.A., J.D., Associate Dean for Finance and
Administration
JOSEPH B. TULMAN, B.A., J.D., M.A.T., Clinical Director and Professor of Law
ROY BALLESTE, B.A., M.A., J.D., LL.M., Director of Law Library and Assistant Professor of
Law
DENA BAUMAN, B.A., M.A., J.D., Director of Career Services
VIVIAN W. CANTY, B.A., M.S., Assistant Dean of Admission
NIALAH WILLIAMS, Director of Financial Aid
BARBARA W. GREEN, B.A., M.A., Registrar
JOSEPH F. LlBERTELLI, B.A., J.D., Director of Alumni Affairs
DONALD PRITCHETT, JR., B.A., J.D., Assistant Director of Admission
LAW FACULTY
EDWARD ALLEN, B.A., J.D., Professor of Law
ROBIN ALEXANDER, B.A., J.D., Associate Professor of Law
DEREK M. ALPHRAN, B.A., J.D., Associate Professor of Law
JOYCE S. BATIPPS, B.S., J.D., Assistant Professor of Law
MARTA W. BERKLEY, B.A., J.D., Adjunct Professor of Law
SPENCER H. BOYER, B.S., J.D., LL.M., Adjunct Professor of Law
STEPHANIE Y. BROWN, B.A., J.D., Associate Professor of Law
ROBERT L. BURGDORF JR., A.B., J.D., Professor of Law
EDGAR S. CAHN, B.A., M.A., Ph.D., J.D., Distinguished Professor of Law
ISAAC CAMPBELL, B.A., J.D., Adjunct Professor of Law
KAREN EVANS, B.S., J.D., Adjunct Professor of Law
MATTHEW I. FRAIDIN, B.A., J.D., Associate Professor of Law
COLIN M. DUNHAM, B.A., J.D., M.A., Adjunct Professor of Law
GAY GELLHORN, B.A., M.A., J.D., Emeritus Professor of Law
LOUISE A. HOWELLS, B.A., M.A., J.D., LL.M., Professor of Law
WADE HENDERSON, B.A., J.D., Joseph L. Rauh, Jr., Professor of Public Interest Law
FRANCESCO ISGRO, B.A., J.D., LL.M., Adjunct Professor of Law
SAMUEL JEFFERSON, B.A., J.D., LL.M., Assistant Professor of Law
CHRISTINE L. JONES, B.A., J.D., Associate Professor of Law
KEVIN KELLY, B.A., M.B.A., J.D.
JACQUELINE LAfNEZ, B.A., J.D., Assistant Professor of Law
THE HONORABLE MILTON "TONY" C. LEE, JR., B.S., J.D., Adjunct Professor of Law
THOMAS MACK, B.A., J.D., Professor of Law
MICHAEL MAGGIO, B.A., J.D., Adjunct Professor of Law
WILLIAM G. MCLAIN, B.A., J.D., Associate Professor of Law
STEPHEN B. MERCER, B.A., J.D., Adjunct Professor of Law
LAURIE A. MORIN, B.A., M.P.A., J.D., Associate Professor of Law
FRITZ MULHAUSER, B.A., M.A., M.Ed., J.D., Adjunct Professor of Law

THE HONORABLE PETER J. PANUTHOS, B.A., J.D., LL.M., Adjunct Professor of Law
THE HONORABLE WILLIAM C. PRYOR, B.A., J.D., LL.M., Distinguished Professor of Law
OMYRA RAMSINGH, B.S., M.A., J.D .• Adjunct Professor of Law
ROBERT RAYMOND, B.A., J.D., Adjunct Professor of Law
WILHELMINA REUBEN-COOKE, B.A., J.D., Professor of Law
WILLIAM L. ROBINSON, A.B., LL.B., Distinguished Professor of Law
W. SHERMAN ROGERS, B.A., J.D., LL.M., Adjunct Professor of Law
RENE SANDLER, B.A., J.D., Adjunct Professor of Law
WALLACE "GENE" E. SHIPP, B.A., J.D., Adjunct Professor of Law
BARBARA SMITH, B.A., J.D., LL.M., Adjunct Professor of Law
JAY STEWART, B.A., M.A., J.D., Adjunct Professor of Law
SUSAN E. SUTLER, B.A., J.D., Associate Professor of Law
TAMI TAYLOR, B.A., J.D., Adjunct Professor of Law and Clinical Fellow
JOHN F. TERZANO, B.A., J.D., LL.M., Adjunct Professor of Law
ALICE M. THOMAS, B.A., J.D., M.B.A., Associate Professor of Law
CAROLYN WALLER, B.A., M.A., J.D., Adjunct Professor of Law
SUSAN L. WAYSDORF, B.A., J.D., Professor of Law

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David A. Clarke School of Law
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1 To be cited as 11 UDClDCSL L. REv. - (2008).

University of the District of Columbia
Law Review
Volume 11 Winter 2008 Number 1
Dear Reader,
I am proud to present to you the 11th volume of the University of the District
Columbia Law Review. This volume was created following our Review's Spring
2007 symposium entitled "District of Columbia Democracy and the Third Branch
of Government." It contains four essays that were produced from four members
of the Council for Court Excellence, edited proceedings from four speakers at the
symposium, as well as one additional, but related, Comment from the Publications
Editor of the Review regarding democracy abroad.
The first essay is by Steven M. Schneebaum, a shareholder in the D.C. firm
Greenberg Traurig LLP. Mr. Schneebaum discusses the legal and constitutional
foundations of D.C.'s judicial branch. The Constitution gives Congress the exclusive
authority to regulate the legislative functions of the district chosen to be the
seat of the Nation's Capital. This authority includes the creation and supervision
over all three branches of D.C.'s government. The Constitution does not set out
how this feat is to be accomplished, and no model set forth by Congress has been
without flaws. This is especially true for the judicial branch. Although Congress
has delegated the power of the executive and legislative branches, it has retained
control over D.C.'s judicial branch. Mr. Schneebaum proffers that because this
power is reserved under Congressional discretion, a change could be made without
a constitutional challenge.
The second essay is by Charles A. Miller of Covington and Burling LLP. Mr.
Miller asks the very important question: Who should be appointing D.C. judges?
Judges in the District of Columbia are chosen by the President of the United
States from a list generated by the District of Columbia Judicial Nomination
Commission and confirmed by the Senate. This process was put in place in 1973
with the creation of the D.C. Home Rule Act. The question presented asks if this
is the best process for choosing D.C. judges. Mr. Miller argues that the appointment
and approval powers should be handled locally.
The third essay is by John Payton, a partner at WilmerHale LLP. Mr. Payton
explores the question of who should be prosecuting D.C. Code offenders. Presently,
the vast majority of crimes committed under the D.C. Code are prosecuted
by the U.S. Attorney for the District and not by a local prosecutor. Mr. Payton

2 UNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEW
outlines the pros and cons of D.C. having a local District Attorney and puts forth
some of the logistical questions that would have to be answered should the prosecution
of D.C. Code offenses be handled locally.
The fourth essay is by Peter R. Kolker from the Counsel on Court Excellence.
Mr. Kolker examines the organization, budget, and funding for the D.C. local
courts. The local D.C. courts are in the unique position of being funded completely
by the federal government. Although this is a stable funding source, it
precludes the local executive and legislative branches from allocating funds to the
courts because they are completely under the budget of the federal government.
There is a tension between how the local courts are organized and how they are
funded.
In this volume, we have also provided remarks from several of our speakers from
the symposium. Our keynote speaker, Congresswoman Eleanor Holmes Norton,
commented on the District's need to control the entirety of its judicial system.
The Honorable Gregory E. Mize spoke about the funding of the D.C. courts, and
that from his viewpoint, the D.C. Courts are not "broken." He adds that while
there is much to be proud of, there is also room for improvement. We have also
provided remarks from Patricia M. Worthy, a professor at Howard University
School of Law, and Daniel A. Rezneck, the Senior Assistant Attorney General
for the District of Columbia. Ms. Worthy spoke to the selection process for the
D.C. judiciary, and Mr. Rezneck provided a viewpoint from his own experience
that the D.C. Court system is not broken.
To conclude volume eleven, we have a Comment from Suzanne M. Sable, a student
of the David A. Clarke School of Law and Publications Editor of the University
of the District of Columbia Law Review. Ms. Sable examines the
historical and contemporary prejudices experienced by several of Japan's ethnic
and minority groups at the hands of the Japanese government. She provides an
historical overview of the groups discussed and lays out several recommendations
that, if adopted, would serve to eliminate some, if not all, of the discrimination
from which these groups have suffered for hundreds of years.
Before closing, I would like to thank the Council for Court Excellence, Wayne
Thrner, and Jason Hart for organizing the Spring 2007 symposium which lead to
this journal. Additionally, I would like to express my sincerest appreciation to
The District of Columbia Law Review editors, and in particular, the members of
the Executive Board for their countless time and effort in producing this volume.
Again, it is my pleasure to present to you this volume of the University of the
District of Columbia Law Review. Democracy and the judiciary is a topic of interest
and concern to all D.C. residents. The works in this volume are thought
provoking and will stimulate conversation on this topic far beyond what was cov-

EIC LEITER 3
ered at the symposium. I hope that you enjoy the essays, remarks, and Comment
that constitute the 11th volume of our Law Review.
Sincerely,
¥-., · ,
CA~ 11.
Charles G. Jeane
Editor-in-Chief

PROLOGUE TO DISTRICT OF COLUMBIA DEMOCRACY
AND THE THIRD BRANCH OF GOVERNMENT
John W. Nields and TImothy J. May*
Why does the President of the United States appoint the judges of the District
of Columbia's local court system? Why is the District of Columbia's local court
system funded and overseen by the United States Congress? Why does the
United States Attorney for the District of Columbia and not the Attorney General
for the District of Columbia function as a local prosecutor, prosecuting most
D.C. Code crimes in the District of Columbia's courts? The four essays which
follow this introduction explore the rich history behind these unusual structural
features of the District of Columbia government; they present the arguments for
and against the status quo; and they grapple with the question of whether this
structure comports with the ideals of democracy.
The essays are the scholarly work of their individual authors, but they present
the findings and recommendations of the Council for Court Excellence's D.C.
Third Branch Project Committee which worked together from April 2006
through May 2007. The project was one part of an extensive D.C. Democracy
Initiative funded by the Trellis Fund, a District of Columbia foundation. While
some organizations participating in the D.C. Democracy Initiative explored such
themes as voting rights and taxing rights in the District of Columbia, the Council
for Court Excellence's project focused on administration of justice matters.
The Council for Court Excellence is a twenty-five-year-old civic organization
whose mission is to improve the administration of justice in the local and federal
courts and related agencies in the Washington area. The Council's goal for the
project was to promote serious public policy discussion of the questions set forth
above. Because of the importance and the potentially controversial nature of the
subject matter, the Council intentionally recruited a distinguished project committee
whose members have diverse backgrounds and strong reputations for professionalism
and good judgment. 1
The Committee began its work by exploring how the current governance structure
came to be. This involved extensive research, analysis, and discussion of the
fascinating legislative histories of three key statutes passed by Congress-the
1970 D.C. Court Reorganization Act? the 1973 D.C. Home Rule Act? and the
* John W. Nields and TImothy J. May co-chaired the D.C. Third Branch Project Committee of
the Council for Court Excellence.
1 The Committee's members are listed at the end of this prologue,
2 District of Columbia Court Reform and Criminal Procedure Act, Pub. L. No. 91-358, 84 Stat.
473 (1970).
3 District of Columbia Self-Government and Governmental Reorganization Act of 1973, Pub.
L. No. 93-198,87 Stat. 774 (1973).

6 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
1997 D.C. Revitalization Act 4 -as well as of the long legal history of the judicial
function in the District of Columbia prior to the 1970 establishment of the District
of Columbia's local court system. Committee members then in~erviewed fifteen
current and former local and federal officials with personal knowledge of or
involvement in the local court system or the prosecution function in the District.
The interviews explored both the legislative history and the officials' views of the
positive and negative aspects of the current governance structure.
After the Committee members discussed their research results, four agreed to
write the topical papers the Committee had decided on: the history of the D.C.
judicial function; the appointment of D.C judges; the prosecution of D.C. crimes;
and the control of the organization, budgeting, and funding of the local D.C.
courts. The Committee met to review first drafts and provide feedback to the
authors, after which the authors revised the initial drafts.
At that point, the Committee members were eager to test their findings and
preliminary conclusions by means of a public symposium, before reaching any
final conclusions. The Committee planned the symposium along with the University
of the District of Columbia Law Review and recruited a corps of prominent,
engaging speakers with different perspectives and opinions on each of the issues
to be discussed. The District of Columbia Third Branch Symposium, held on
April 20, 2007, was hosted by Dean Shelley Broderick and the University of the
District of Columbia David A. Clarke School of Law. 5 The symposium drew an
audience of more than one hundred persons from remarkably diverse backgrounds
and viewpoints. Discussions among the panels and the audience throughout
the day were animated, thought-provoking, and occasionally quite surprising.
After reviewing the symposium transcript, the Committee met again in mid­
May 2007 to discuss and decide on what revisions to make to the four issue papers.
6 After having spent a full year educating ourselves on the issues, the Committee
decided unanimously that the published papers should recommend the
following:
(1) The Home Rule Act be revised to empower the Mayor to appoint D.C.
judges, with confirmation by the D.C. Council;7
(2) the Home Rule Act be revised to permit D.C. 's local prosecutor to
prosecute criminal offenses under the D.C. Code, while recognizing that,
because this function has never been included in the local budget, determin-
4 National Capital Revitalization and Self-Government Improvement Act of 1997, Pub. L. No.
105-33, 111 Stat. 251 (1997).
5 The symposium schedule and speaker list is reproduced at the end of this introduction.
6 The Council for Court Excellence had initially tasked the project committee to describe the
development of the governance of the courts and the prosecution function and to discuss the political
and fiscal pros and cons of changing the status quo.
7 Currently, the President and Senate are empowered to appoint D.C. judges.

PROLOGUE TO DISTRICf OF COLUMBIA DEMOCRACY
7
ing how to implement and fund such a new function requires further study;
and
(3) that no change be made to the current system of federal funding for the
D.C. courts, given the restrictions now placed by Congress on the District
government's right to impose taxes and the extra costs the District already
bears because it is the Nation's Capital.
The D.C. Third Branch Project Committee presented its findings and recommendations
to the Council for Court Excellence Executive Committee in July
2007. The Executive Committee expressed great appreciation to us for having
produced the first comprehensive report about the development of the District of
Columbia court system in thirty years, as well as the first study which analyzed
the District's unique system of prosecuting local crimes federally instead of locally.
The Executive Committee also endorsed continued public discussion of the
important public policy issues addressed by the D.C. Third Branch Project's
scholarship.
Continued public discussion is necessary because the District of Columbia's
citizens and elected officials do not have the authority to implement our Committee's
recommendations- only Congress may do so. However, it is important to
note that political trends over the past year on matters of D.C. democracy are
more promising than when our project began. Efforts to grant D.C. voting representation
in the House of Representatives have progressed farther than would
have been predicted eighteen months ago. Efforts to reduce Congressional oversight
of local D.C. budget decisions and of local D.C. legislation have likewise
begun to receive serious consideration in Congressional hearings. We hope that
the issues discussed herein will serve to further the government's discourse, which
will in turn help improve the administration of justice and uphold the values of
democracy.

MEMBERS OF THE COUNCIL FOR COURT EXCELLENCE
D.C. THIRD BRANCH PROJECT COMMITTEE
TImothy May
Patton Boggs LLP
Co-Chairs
John Nields
Howrey LLP
James Bishop
Catholic Charities of the
Archdiocese of Washington, Inc.
Jon Booker, Jr.
Arent Fox PLLC
Members
Katherine Broderick
Dean, University of the District of Columbia
David A. Clarke School of Law
Stephen Harlan
Harlan Enterprises, LLC
Eric Holder, Jr.
Covington & Burling LLP
Peter Kolker
Zuckerman Spaeder LLP
Lorelie Masters
Jenner & Block LLP
Charles Miller
Covington & Burling LLP
James Nathanson
Former Chair, D. C.
Council Judiciary Committee
John Payton, Jr.
WilmerHale LLP
Steven SchneebaUID
Greenberg Traurig LLP
Jo-Ann Wallace
National Legal Aid and Defender
Association
Lois Williams
Washington Lawyers' Committee

THE DISTRICT OF COLUMBIA THIRD BRANCH
SYMPOSIUM SCHEDULE
FRIDAY, APRIL 20, 2007
9:45-10:00
10:00-10:20
10:20-11:50
12:00-1:20
1:30-3:00
3:10-4:40
4:40
WELCOME:
Shelley Broderick, Dean, University of the District of Columbia
David A. Clarke School of Law
TImothy May, Co-Chair, Council for Court Excellence Third
Branch Committee, Patton Boggs LLP
mSTORY OF THE D.C. THIRD BRANCH:
Steven Schneebaum, Council for Court Excellence Board Member,
Greenberg Traurig LLP
WHO APPOINTS D.C. COURT JUDGES:
Charles Miller, Council for Court Excellence Board Member,
Covington & Burling LLP
Hon. Gregory Mize, Retired D.C. Superior Court Judge, Judicial
Fellow at the National Center for State Courts
Patricia Worthy, Professor, Howard University School of Law,
former Chair, D.C. Judicial Nomination Commission
Daniel Rezneck, Senior Assistant Attorney General for the District
of Columbia
LUNCH AND KEYNOTE ADDRESS
Congresswoman Eleanor Holmes Norton, D-DC
WHO PROSECUTES D.C. CODE CRIMES:
John Payton, former D.C. Corporation Counsel, former President
of the D.C. Bar, Wilmer Hale LLP
Robert Spagnoletti, former Attorney General for the District of
Columbia, Schertler & Onorato LLP
Joseph diGenova, former United States Attorney for the District of
Columbia, diGenova & Toensing LLP
Angela Davis, former Director of the D.C. Public Defender Service,
Professor, American University Washington College of Law
WHO CONTROLS THE ORGANIZATION OF THE D.C.
COURTS:
Peter Kolker, Council for Court Excellence Board Member,
Zuckerman Spaeder LLP
Samuel Harahan, former Executive Director, Council for Court
Excellence, Washington D.C. Police fund
Stephen Harlan, former Vice Chairman of the Control Board,
Harlan Enterprises LLC
CLOSING REMARKS:
John Nields, Co-Chair, Council for Court Excellence Third Branch
Committee, Howrey LLP
Shelley Broderick, Dean, University of the District of Columbia
David A. Clarke School of Law

THE LEGAL AND CONSTITUTIONAL FOUNDATIONS
FOR THE DISTRICT OF COLUMBIA JUDICIAL BRANCH
Steven M. Schneebaum*
INTRODUCTION
As all residents of the District of Columbia should be well aware, the Nation's
Constitution reserves to Congress the power "to exercise exclusive Legislation in
all cases whatsoever over such District. .. as may ... become the Seat of the
Government of the United States. ,,1 The constitutional grant sanctions congressional
establishment of all of the trappings of municipal authority in Washington,
including the creation and oversight of all three branches of the District's government?
The Constitution does not, however, mandate any particular solution to
the problem of assigning to a national legislature the task of governing a city.
Congress has responded by experimenting with a number of models, of which by
general consensus it can be said that none has been ideal.
Congressional efforts to ordain the third branch of the District's government
have proved especially problematic. In part, the difficulty is posed by the need to
accommodate constitutional rules establishing the federal jUdiciary. The Constitution
calls for a Supreme Court 3 and for "such inferior Courts as the Congress
may from time to time"4 determine to be in the national interest. The judges of
all courts created under that authority are nominated by the President but may
take office only on confirmation by the Senate. s They hold their offices with lifetime
tenure and are protected against reduction of their salaries. 6 They may be
removed from office only pursuant to the impeachment procedures applicable to
all "civil officers of the United States.,,7 United States Attorneys, federal prosecutors
in each of the judicial districts, likewise are appointed by the President and
confirmed by the Senate. s However, as officers of the Department of Justice re-
* Steven M. Schneebaum is a shareholder in the Washington, D.C. office of Greenberg Traurig
LLP. He is also a member of the adjunct faculty of the School of Advanced International Studies, The
Johns Hopkins University, and is a member of the Board of Directors of the Council for Court
Excellence.
1 U.S. CON ST. art. I, § 8, d. 17.
2 "The power conferred by art. I, § 8, d. 17 is plenary." O'Donoghue v. United States, 289 U.S.
516, 539 (1933).
3 U.S. CONST. art. III, § 1.
4 Id.
5 U.S. CONST. art. II, § 2.
6 U.S. CONST. art. III, § 1.
7 U.S. CONST. art. II, § 4.
8 28 U.S.c. § 541(a) (2006).

14 UNIVERSITY OF THE DISTRIcr OF CoLUMBIA LAW REVIEW
porting to the Attorney General, they typically submit their resignations upon
any change of presidential administration. 9
The questions considered here are specific ones: What requirements are imposed
by the Constitution on the appointment of judges and prosecutors of the
courts of the Nation's Capital? In particular, does the Constitution mandate the
current procedures by which the judges of the District's courts, the Superior
Court and the District of Columbia Court of Appeals, as well as individuals
charged with prosecuting offenders against District laws, are nominated by the
President and are subject to confrrmation by the United States Senate? Does it
require that prosecution of accused criminals in the District be handled by the
U.S. Attorney, rather than by a local official selected by some means other than
that used for the nomination of federal officers?
With respect to judges, the issue is neatly presented by the constitutional text
itself: When Congress designs a judicial system for the District of Columbia, is it
operating under its authority to create "inferior Courts,,10 under Article III, or is
it "exercis[ing] exclusive Legislation [over] the Seat of the Government,',ll under
Article I? If the courts of the District are federal courts, then there can be no
doubt that Article III permits no alternative to presidential appointment and senatorial
confirmation, as well as life tenure. But if the courts are Article I courts, 12
then it follows with comparable clarity that Congress may delegate any of its
authority as it sees fit, and it need not retain any role in the appointment of the
9 U.S. Attorneys serve for four years. 28 U.S.C. § 541(b) (2006). It is not uncommon, however,
for their resignations to be requested if there is a change of administration, and especially a change of
party, in the interim. They are expected to pursue the President's prosecutorial agenda but to do so in
a matter not avowedly political. Like all executive branch officials, they serve at the pleasure of the
President and may be removed by him. 28 U.S.C. § 541(c) (2006). The extent to which U.S. Attorneys
are subject to replacement for flagrantly partisan reasons during a presidential term seems to be a
matter in some controversy at the moment of this writing.
10 U.S. CONST. art. III, § 1.
11 U.S. CONST. art. I, § 8, cl. 17.
12 Article I courts are courts set up to adjudicate matters falling within exclusive congressional
competence. They include, for example, the bankruptcy courts, created pursuant to the power granted
to Congress "to establish ... uniform laws on the subject of Bankruptcies throughout the United
States." U.S. CONST. art. I, § 8, cl. 4. Military courts are established under congressional authority
"[t]o provide for organizing, arming, and disciplining the Militia, and are, therefore, also Article I
courts. U.S. CONST. art. I, § 8, cl. 16. And the courts of federal territories and "other Property belonging
to the United States" are subject to plenary congressional control under Article IV, § 3, clause 2.
Yet the Supreme Court has found it very difficult to articulate with precision the outer bounds of
Article I courts: "no standard for pronouncing a court legislative rather than constitutional has obtained
the adherence of a majority of the Court." J.H. KILLIAN ET AL., THE CONSTITUTION OF THE
UNITED STATES OF AMERICA: ANALYSIS AND INTERPRETATION: ANALYSIS OF CASES DECIDED BY
THE SUPREME COURT TO JUNE 28, 2002 641 (2004) (citing inter alia the fractured opinions of the
Court in Glidden Co. v. Zdanok, 370 U.S. 530 (1962».

THE LEGAL AND CONSTITUTIONAL FOUNDATIONS 15
judges who will be members of those courts. Nor does the President have any
constitutionally-directed role in the exercise by Congress of its Article I powers. 13
Prior to the most recent top-to-bottom overhaul of the District's third branch
in 1970,14 the courts charged with adjudicating local criminal prosecutions and
resolving local civil disputes were a hybrid creature. It could be said of them both
that they were part of the congressional mandate to oversee the District of Columbia,
and they were fully-fledged stars in the federal judicial galaxy. They had
what one federal court described as a "dual character.,,15 On occasion, Congress
assigned to those courts non-judicial tasks that could be assumed only by virtue
of their status under Article I, such as the assignment to oversee compilation of a
list of voters. 16 Yet Congress left no doubt that the adjudicatory acts of those
courts, including those most parochial in scope, were judicial in character, and,
therefore, appealable to the Court of Appeals for the District of Columbia, a
federal Article III court,17 and thence reviewable by certiorari in the United
States Supreme Court.
13 The President has the authority to sign or to withhold signature from legislative enactments.
However, that is the extent of his participation in implementing congressional powers under Article I.
Just as the President does not appoint the Librarian of Congress, the Architect of the Capitol, or the
Comptroller General, he has no obligatory role in carrying out such functions as the selection of the
judiciary for the Nation's Capital, as to which the Constitution grants plenary power to the legislative
branch.
14 The District of Columbia Court Reform and Criminal Procedure Act of 1970, 91 Pub. L. No.
358,84 Stat. 473 (1970) [hereinafter Court Reorganization Act].
15 Hobson v. Hansen, 265 F. Supp. 902 (D.D.C. 1967).
16 This happened, for instance, in 1865, when the District of Columbia Supreme Court, as it was
then called, was directed to appoint a Commission, the purpose of which was to ensure that the
Democratic mayor of the City was denied power to control those lists. The scheme worked: an all­
Republican Commission, reporting to the Chief Justice, was appointed. See J. MORRIS, CALMLY TO
POISE THE SCALES OF JUSTICE 38 (2001) [hereinafter MORRIS]. This charming volume's title comes
from the description of the judicial function by William Cranch, noted reporter of Supreme Court
jurisprudence and Chief Judge of the Circuit Court, dissenting, in U.S. v. Bollman and Swartwout.
U.S. v. Bollman and Swartwout, 24 F. Cas. 1189 (D.C. Cir. 1807) (Cranch, CJ., dissenting). Morris
cites other examples of the assignment of non-judicial functions to the District's local courts that are
more recent, if less egregious.
17 This was the situation at least until the judicial restructuring of 1942, when a Municipal Court
of Appeals was created, from which the federal appellate court had discretion to hear further appeals.
From 1942 until the Court Reorganization Act, review in Article III courts was through writs, not
appeals as of right. In all cases, however, while the courts had a variety of different names, the notion
that decisions of local tribunals were appealable to, or reviewable, in Article III courts was consistently
honored. Indeed, in many instances, local and federal courts had concurrent jurisdiction even at
trial level. See generally MORRIS, supra note 16, surveying the history of the local courts and of the
federal Circuit Court and its progeny.

16 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
I. THE DISTRICT OF COLUMBIA COURT REFORM AND
CRIMINAL PROCEDURE ACT OF 1970
The ambivalent character of the District's local courts was eliminated in 1970.
Driven in large measure by the realization that Washington had become a major
city, with major urban problems that required a smoothly functioning judiciary,18
Congress adopted and President Nixon signed legislation that essentially patterned
the District's judicial branch on the structure most commonly adopted by
the several states. The statute pronounced an absolute separation of the local
functions of the judiciary, thenceforth to be the exclusive province of the new
Article I Superior Court and District of Columbia Court of Appeals, both formally
inaugurated on January 1, 1971,19 from those of the Article III U.S. District
Court for the District of Columbia and the U.S. Court of Appeals for the District
of Columbia Circuit.
The Court Reorganization Act provided that judges of both local courts would
be appointed for terms of fifteen years, subject, at the time, to mandatory retirement
at age seventy.20 As before, they were to be nominated by the President but
would take office only upon confirmation by the Senate. 21 The Act also created a
Commission on Judicial Disabilities and Tenure, charged with monitoring the
performance of judges with a view to their reappointment and continuation in
office. 22 Congress expressly noted in the statute that it was exercising its powers
under Article I, § 8, clause 17 in amending the D.C. Code to incorporate this
latest overhaul of the third branch. 23
The bill that became the Court Reorganization Act was not without controversy.
In the face of significant support for greater local control, Congress
18 The perceived proliferation of crime in the District, as well as its volatility during the 1968
riots after the murder of Rev. Martin Luther King, Jr., were major motivators of this awareness.
There appears to have been considerable concern about the growing backlog of small-scale criminal
prosecutions pending disposition in the federal courts. According to then D.C. Mayor-Commissioner
Walter Washington, over 1,000 people were incarcerated while awaiting trial or sentencing in the
District as of July, 1969. Court Reorganization, Criminal Law Procedures, Bail, and the Public Defender
Service: Hearing on H.R. 13689 and H.R. 12854 Before the Subcomm. No.1 of the H. Comm. on
the District of Columbia, 91st Congo 214 (1969).
19 Hence the date "MCMLXXI" incorporated into the Seal of the Superior Court.
20 D.C. CODE § 11-1502 (1972). However, the current mandatory retirement age for D.C.
judges is seventy-four. D.C. CODE § 11-1502 (2007).
21 The President's role in this process is nothing more than the exercise of power delegated to
him by Congress. Article II of the Constitution, which outlines the scope of the Executive Branch,
contains not one word conferring power on the President with respect to the governance of the Nation's
Capital. If the District of Columbia courts are truly Article I courts, established by congressional
prerogative, then Congress has the right to organize them in any way it sees fit, including
retaining to itself the judicial selection authority or empowering the President or anyone else to perform
that function.
22 D.C. CODE § 11-11-1521 (2001).
23 D.C. CODE § 11-101(2) (2001).

THE LEGAL AND CONSTITUTIONAL FOUNDATIONS 17
hemmed in the federal prerogative to administer the third branch, not only by
establishment of the Disabilities and Tenure Commission, but also by creating a
Joint Committee on Judicial Administration. 24 The Committee was made up exclusively
of local judges: The Chief Judges of the Court of Appeals and the Superior
Court, with associate judges of both courts to be elected annually by their
colleagues. 25 The Committee on Judicial Administration was tasked with overseeing
general personnel policies, including recruitment, removal, compensation,
and training; accounts and auditing; procurement and disbursement; submission
of the annual budget requests of both courts to the Commissioner of the District
of Columbia as the integrated budget of the local court system; approval of the
bonds of fiduciary employees within the local courts; formulation and enforcement
of standards for outside activities of judges; development and coordination
of statistical and management information systems and reports supporting the
annual report of the D.C. courts; liaison between the District of Columbia courts
and the courts of other jurisdictions, including the Judicial Conference of the
United States, the Judicial Conference of the District of Columbia Circuit, and
the Federal Judicial Center; and the design of "other policies and practices of the
District of Columbia court system and resolution of other matters which may be
of joint and mutual concern.,,26
The Court Reorganization Act also amended various sections of the U.S. Code
specifically to assimilate the District of Columbia Court of Appeals to the highest
Court of a state, and the Superior Court to state trial courtS. 27 But there was no
question that the Court Reorganization Act was not promoted by its sponsors as
a home rule measure, nor was it perceived by the District of Columbia Bar Association
to be a substantial step toward local autonomy. The roles of the President
and of the Senate in selecting judges in the new supposedly local courts were
codified. 28 There was to be no local participation in the appointment of judges or
in the assignment of their functions. Nor was the analogy between D.C. and state
courts perfect. Congress was aware of the tripartite identity of the District: It was
at once a federal enclave, an entity very like a state, and a busy and troubled
municipality that, in 1970, numbered well over 750,000 souls. 29
24 D.C. CODE § 11-1701 (2001).
25 D.C. CODE § 11-1701(a) (2001).
26 D.C. CODE § 11-1701 (2001).
27 D.C. CODE § 11-1501(a) (2001).
28 Id.
29 U.S. Bureau of the Census, Population of the 100 Largest Urban Places: 1970, available at
http://www.census.gov/population/documentationltwps0027/tab2O.txt (last visited Dec. 2, 2007).

18 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
II. THE DISTRIcr OF COLUMBIA SELF-GOVERNMENT AND
GOVERNMENTAL REORGANIZATION Acr OF 1973
Three years later, the District achieved home rule through the District of Columbia
Self-Government and Governmental Reorganization Act,3° which gave
the elected Mayor and District of Columbia Council considerable autonomy in
adopting, amending, and repealing provisions of the D.C. Code. Although congressional
oversight was retained over specific legislative initiatives,31 the Council's
functions were patterned after those of state legislatures around the country.
The Home Rule Act did not substantially alter the new division of responsibilities
between local and federal courts, but it did make a significant change in the
way in which judges were selected. The original draft of the bill that became the
Home Rule Act called for local judges to be appointed by the Mayor with the
advice and consent of the District of Columbia Council. That provision was removed
before enactment. Instead, the power to name judges was left with the
President with Senatorial advice and consent, alb~it with the critical proviso that
he select their names from a slate of three candidates for each vacancy proposed
by a new Judicial Nomination Commission. 32 Like the Commission on Disabilities
and Tenure, the Judicial Nomination Commission includes presidentially-appointed
as well as local members, and at least two of them are not to be
lawyers. 33
The Judicial Nomination Commission comprises seven members. 34 The member
appointed by the President serves a five-year term;35 the others six serve
staggered terms of six years. 36 Two members are appointed by the Board of Governors
of the District of Columbia Bar;37 two, one of whom may not be a lawyer,
are appointed by the Mayor; one non-lawyer member is appointed by the D.C.
Council; and one active or retired federal judge having served in the District is
appointed by the Chief Judge of the United States District Court for the District
of Columbia. 38 The lawyer members of the Commission under the Home Rule'
Act, like the members of the Judicial Disabilities and Tenure Commission, must
30 District of Columbia Home Rule Act, Pub. L. No. 93-198, 87 Stat. 774 (1973) [hereinafter
Home Rule Act].
31 Any specific legislation adopted by the elected Council, even after signature by the elected
Mayor, may to this day be undone by resolution of Congress. Every proposed act is subject to congressional
review, in that for a period of sixty days, beginning on the day it is transmitted to the
Speaker of the House and the President of the Senate, Congress may adopt a joint resolution disapproving
it, effectively overriding the Council's enactment. D.C. CODE § 1-206.02(c)(2) (2001).
32 Home Rule Act, § 431.
33 [d. § 434(b)(4).
34 [d. § 434(a).
35 [d. §§ 434(a), 434(b)(4)(A).
36 [d. § 434(a).
37 [d. §§ 434(a), 434(b)(4)(B).
38 [d. §§ 434(a), 434(b)(4)(C)-(D), (E).

THE LEGAL AND CONSTITUTIONAL FOUNDATIONS 19
be qualified to sit as judges in the District. 39 No member of the Judicial Nomination
Commission may serve simultaneously on the Tenure and Disabilities
Commission. 4o
The composition of the Nomination Commission illustrates the congressional
desire to entrust some role in the appointment of judges to persons familiar with
the characteristics of the Nation's Capital and the needs of its judicial department.
During consideration of the Home Rule Act, however, the proposal to
make the local courts truly local in constitution as well in function did not survive
into the final version. The parallel between the District government and those of
the fifty states was regularly challenged with respect to the appointment process
and did not withstand scrutiny. Members of Congress, including supporters of the
bill, insisted that the District was not a state but a city, whose municipal executive
should not have the power to nominate members of the judiciary.
Thus, for example, Congressman Ancher Nelsen (R-MN) likened the District
to his home state's capital, St. Paul, whose residents would not expect their
mayor to have appointment power over local courts. 41 Moreover, Gerald Reilly,
Chief Judge of the D.C. Court of Appeals, worried that giving nominating power
to the Mayor was sensible only if the District were granted statehood, which he
believed would require a constitutional amendment. 42 Even Rep. Edith Green
(D-OR), a liberal and a supporter of home rule, said on the House floor:
I know of no city in the United States where the mayor is allowed to appoint
such judges .... At the present time, the President appoints judges in
the District of Columbia. The judges that the elected mayor [would be]
given authority to appoint compare with circuit court and the State Supreme
Court judges in my State of Oregon. I think we ought to make a
change here and we ought to retain the Presidential appointment we have
now. 43
The Mayor was thus treated as the chief executive of a municipality, not as the
governor of a state, even against the background of the Court Reorganization
Act, which had repeatedly assimilated the courts of the District to those of a
state. The simple answer to Ms. Green, after all, was that the apparent mismatch
in executive functions would disappear if in her floor statement for "city" she had
substituted "state," and for "mayor," "governor.,,44 Yet this broken and inconsis-
39 Id. § 434(b)(4).
40 Id. § 431(d)(3)(E).
41 119 CONGo REC. H8715 (daily ed. Oct. 9, 1973).
42 119 CONGo REC. H8722 (daily ed. Oct. 9, 1973).
43 119 CONGo REC. H8798 (daily ed. Oct. 10, 1973).
44 The Congresswoman could not truthfully have said that "I know of no [state) in the United
States where the [governor] is allowed to appoint such judges." In many states (Maryland is a proximate
example), Governors appoint members of the Supreme Court. In a state that comprises numerous
cities, it would seem logical that city mayors do not appoint state judges, but that is hardly

20 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
tent analogy was used to justify the continuation of a system that retained presidential
and congressional control over the membership of the local judiciary in
Washington.
III. THE VIEW OF THE FEDERAL JUDICIARY
This regime remains in place today. It is clear beyond doubt that, in creating
the District of Columbia Superior Court and Court of Appeals, Congress acted
under its authority granted by Article I, not pursuant to Article III, of the Constitution.
Yet they are also courts of general jurisdiction with the power to deprive
citizens of liberty or property under duly enacted legislation. The Supreme Court
has held that it is consistent with the Constitution for a court to be empowered by
Congress to exercise plenary judicial functions without requiring that its judges
have Article III protections against removal from office or reduction of
compensation.
The issue was squarely presented for United States Supreme Court resolution
in 1973. 45 Roosevelt Palmore had been found guilty in D.C. Superior Court of
carrying an unregistered firearm after conviction of a felony in violation of the
D.C. Code and was sentenced to prison. 46 He appealed to the Court of Appeals,
challenging the constitutionality of his trial before what he claimed was a federal
court whose presiding judge was neither appointed under nor subject to the tenure
and compensation protections of Article III. The Court of Appeals affirmed,
and Palmore purported to appeal to the Supreme Court, pursuant to laws then in
effect providing for appellate, rather than discretionary, jurisdiction of the High
Court in cases in which the constitutionality of state law was in question. 47 The
Supreme Court, per Justice White, dismissed the appeal.
The Court canvassed the history of the District's third branch, finding that in
the Court Reorganization Act, Congress had expressly assimilated the District of
Columbia Court of Appeals to "the highest court of a state" for purposes of the
High Court's appellate jurisdiction. 48 That jurisdiction lay, however, only in cases
relevant to the issue. The District of Columbia includes just a single municipality, which performs a
dual, indeed a treble, function as state and city (and federal enclave). It would seem that the state
analogy was invited, indeed compelled, by the Court Reorganization Act adopted only three years
earlier. After all, the highest courts of the nation's cities do not have their decisions reviewed on writs
of certiorari by the U.S. Supreme Court. Yet the illogical and imprecise parallel to municipalities
carried the day, and legislative provisions that would have given the District's executive the right to
appoint its judiciary were withdrawn in favor of continuation of the procedural status quo with no
substantive change.
45 Palmore v. United States, 411 U.S. 389 (1973).
46 Id.
47 This provision, previously codified at 28 U.S.C. § 1257(2}, was eliminated in 1988, when, in
Pub. L. No. 100-352, Congress removed nearly all appellate jurisdiction of the Supreme Court. See
Act of June 27, 1988, PUB. L. No. 100-352, 102 Stat. 662 (1988).
48 Palmore, supra note 44, at 395 (emphasis added).

THE LEGAL AND CONSTITUTIONAL FOUNDATIONS 21
in which a statute of a state was subject to constitutional challenge. Neither the
Court Reorganization Act nor any other legislation specifically described the District
of Columbia Code as state law, and, indeed, it was self-evident that no state
had a hand in its enactment. Palmore's case could be heard, therefore, only pursuant
to a writ of certiorari, which the Court then issued, and affirmed the decision
below. 49
The petitioner had, in effect, been convicted in a state court, created by Congress
under Article I, for a violation of a statute that had been adopted by the
federal government before home rule. so The question was whether such an outcome
denied him due process of law under the Fifth Amendment. Justice White
for an 8-1 Court held that it did not. According to the Court, Palmore's
position ultimately rests on the proposition that an Article III judge must
preside over every proceeding in which a charge, claim, or defense is based
on an Act of Congress or a law made under its authority. At the very least,
it asserts that criminal offenses under the laws passed by Congress may not
be prosecuted except in courts established pursuant to Article III. In our
view, however, there is no support for this view in either constitutional text
or in constitutional history and practice. s1
The Court cited numerous instances in which state courts had concurrent and
indeed, before 1875, exclusive jurisdiction to adjudicate many of what we today
call federal questions. It looked to the authorities of territorial courts, as well as
courts-martial, concluding that the requirements of Article III "must in proper
circumstances give way to accommodate plenary grants of power to Congress to
legislate with respect to specialized areas having p\irticularized needs and warranting
distinctive treatment. ,,52 The local courts of the District of Columbia were
created pursuant to the congressional authority "to exercise the 'powers of ... a
State government in all cases where legislation is possible.' ,,53
Since states do not generally provide for lifetime tenure of judges, neither
need Congress do so in carrying out its role as the local government of the District
of Columbia. At the end of the day, the Court held, "Palmore was no more
49 This question came before the Court again in Key v. Doyle. Key v. Doyle, 434 U.S. 59 (1977),
cert. denied, 434 U.S. 1025 (1978). In Key, the Court reinforced the District-State analogy of the Court
Reorganization Act and held that "no right of appeal should lie to this Court when a local court of the
District invalidates a law of exclusively local application." [d. at 68. D.C. Code provisions are not, for
these purposes, "statutes of the United States," but constitute "a comprehensive set of laws
equivalent to those enacted by State and local governments having plenary power to legislate for the
general welfare of their citizens." [d. at n.13. The entirety of the District's statutory corpus juris,
therefore, governing hundreds of thousands of residents, and millions of visitors, is neither state nor
federal in character.
50 Palmore, supra note 44, at 396-97.
51 Palmore, supra note 44, at 401.
52 [d. at 408.
53 [d. at 407 (citing Stoutenburgh V. Hennick, 129 U.S. 141, 147 (1889».

22 UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEW
disadvantaged and no more entitled to an Article III judge than any other citizen
of any of the 50 states who is tried for a strictly local crime. ,,54
The unambiguous characterization of the Court Reorganization Act courts as
Article I courts has been reaffirmed in a number of subsequent decisions of the
Supreme Court and other federal tribunals. For example, in Pernell v. Southall
Realty, the Supreme Court found that the District of Columbia local court procedures
must conform to the Bill of Rights. This was a limitation on congressional
power that expressed deference to the local courts' disposition of purely local
matters. 55
In Jenkins v. United States, the D.C. Circuit had to consider the question
whether the District of Columbia courts had exclusive jurisdiction to hear challenges
to the assessment of local D.C. taxes. 56 The court acknowledged the congressional
assignment of responsibility and concluded that review of taxation was
one of the functions that Congress delegated to the local courts pursuant to its
constitutional mandate for oversight of the Capital:
Acting pursuant to Article I, § 8, clause 17, of the United States Constitution,
Congress established a State-type court system for the District of Columbia,
and transferred jurisdiction over matters arising under District of
Columbia law from the federal courts to the District of Columbia courts. 57
54 Palmore, supra note 44, at 410. This conclusion, although it appears well enshrined in the
subsequent caselaw and is probably not a candidate for revisiting in the near future, is not entirely
analytically satisfactory. The fact is that the District is not a state. The states' sovereignty is, of course,
reserved in areas not "delegated to the United States by the Constitution," according to the Tenth
Amendment. But there is no residual state sovereignty in the area as to which exclusive governing
authority is conferred on Congress, which derives its only powers from the Constitution itself. If the
Capital, therefore, is subject to the plenary sovereignty of the United States and not of any state, then
it is not obvious that Congress may exercise that sovereignty to establish a judiciary not conforming to
the few rules laid down by the Constitution to organize the federal judicial branch. See Q'Donoghue,
supra note 2 at 516 (in which the Court concluded that the only power Congress has to establish a
permanent judiciary of general jurisdiction-as opposed to the temporary structures to be in place in
the territories while their statehood is pending-is under Article III). The state courts may exercise
plenary jurisdiction within their own borders precisely because, under the Constitution, the governments
of the states never ceded that power to the federal authorities. The question still unresolved
after Palmore and its progeny is not, in other words, whether it is consistent with the Constitution for
state courts to adjudicate federal claims; it is whether, where there are no state courts to perform that
function, the federal government may create its own courts to do so without regard to the rules granting
(and therefore limiting) the court-creating authority given to Congress in Article III. The
O'Donoghue Court went out of its way to avoid addressing the matter before it as one of constitutional
interpretation, and the decision in that case was, in effect, legislatively overridden. But whether
that outcome is consistent with the Constitution, in the opinion of this author at least, has not been
definitively determined.
55 Pernell v. Southall Realty, 416 U.S. 363 (1974). This result flowed directly from the conclusion
that the Bill of Rights limits what Congress can do in carrying out any of the powers granted to it
by the Constitution.
56 Jenkins v. United States, 236 F.3d 6 (D.C. Cir. 2001).
57 Id. at 12.

THE LEGAL AND CONSTITUTIONAL FOUNDATIONS 23
The vesting of general jurisdiction in Article I courts in this manner was, the
Circuit Court concluded, not "constitutionally problematic. ,,58
IV. FEDERAL AND LOCAL PROSECUTORS
The Court Reorganization Act is silent with respect to the prosecutorial function,
thereby continuing the previous arrangement by which the United States
Attorney for the District of Columbia bore and still bears principal responsibility
for prosecuting all local crimes except the most minor. Prosecutions are brought
in the name of the United States, on the basis of the legal fiction that crimes
under the District of Columbia Code are crimes against the nation. The United
States Court of Appeals for the D.C. Circuit held in 1979 that violations of the
D.C. Code and the U.S. Code offended against a single sovereign, the United
States. 59 Yet most of the caselaw discussing this point assumes that conclusion,
rather than deriving it, holding that D.C. Code offenses are crimes against the
United States precisely because they are prosecuted by the U. S. Attorney.60
Nor are the reported cases consistent in any event. In Davis v. United States,
the District of Columbia Court of Appeals held that the Federal Probation Act
was not applicable to D.C. Code offenders because such persons do not commit
offenses against the United States. 61 The better view is expressed by one
commentator:
[The] logic by which D.C. Code offenses are considered crimes against the
United States is consistent neither with the jurisdiction conferred by Congress
upon the District's two court systems, nor with the constitutional
power of Congress to vest certain powers in non-Article III COUrts. 62
Nevertheless, the Home Rule Act specifically prohibited the Council from altering
the powers of the U.S. Attorney and the U.S. Marshal with respect to local
prosecutions, even for violations of the District's Code over which it was now the
sole legislative master. 63 Although it has been argued that the Council could give
local prosecutors concurrent authority to prosecute local offenses-since the fo-
58 Id.
59 See Goode v. Markley, 603 F.2d 973 (D.C. Cir. 1979), cert. denied, 444 U.S. 1083 (1980).
60 United States v. Kember, 648 F.2d 1354, 1358-59 (D.C. Cir. 1980); United States v. Ford, 627
F.2d 807, 812 (7th Cir.) (U.S. Attorney's prosecution of local offenses in name of United States justifies
retention of jurisdiction over District offenses by federal district courts outside the District), cert.
denied, 449 U.S. 923 (1980); Dobbs V. Neverson, 393 A.2d 147, 149 (D.C. 1978); Hackney V. United
States, 389 A.2d 1336, 1339 (D.C. 1978)." See generally Joan Hartman, Federal and Local Jurisdiction
in the District of Columbia, 92 YALE L.J. 292 n.79 (1982).
61 Davis V. United States, 397 A.2d 951, 955 (D.C. 1979); see also Sanker V. United States, 374
A.2d 304, 306-09 (D.C. 1977).
62 Joan Hartman, Federal and Local Jurisdiction in the District of Columbia, 92 YALE L.J. 292,
309 (1982).
63 See D.C. CODE § 1-206.02(a)(8) (2001) (formerly § 1-233 (1981».

24 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
cus of such legislation would be to expand the authority of the local Attorney
General, rather than to affect that of the federal U.S. Attorney64-it seems implausible
that such an enactment would survive congressional veto.
V. CONCLUSION
The inescapable conclusion from the adoption of the Court Reorganization
Act and the Home Rule Act is that Congress has demonstrated both the constitutional
authority and the political will to delegate its Article I, § 8, clause 17 authority
to "exercise exclusive Legislation in all cases whatsoever over [the]
District," with respect to all three branches of the City's government. 65 The executive
is an elected Mayor, and the legislature an elected Council. Both are ultimately
dependent for their tenures in office upon the citizens of the Nation's
Capital.
Congress has reserved to itself by legislation the power to organize and to
oversee the third branch of the government of the District of Columbia. So too
may Congress remove itself, and the President, from the process of selection of
its judges and prosecutors. As a matter of logic and law, there would seem no
substantial basis for the contention that Congress could not similarly by statute
provide for selection of the members of the District's Article I courts, as well as
of counsel who represent the public when they appear before those courts, by the
Mayor, by the Council, by the Mayor with the advice and consent of the Council,
by the courts, or even by the citizenry through popular election.
Both the Court Reorganization Act and the Home Rule Act are federal law,
and they can, therefore, be changed by federal law. There is no constitutional
impediment to the creation of a system whereby the selection of the judges of the
Superior Court of the District of Columbia, and of the District of Columbia
Court of Appeals, does not require their nomination by the President or their
confirmation by the United States Senate. Nor does the Constitution mandate
that prosecution of local offenses be in the name of the United States or through
the office of the United States Attorney, rather than being placed in the hands of
a local official. 66 All of this lies within congressional discretion, and all of these
changes could be made without fear of constitutional challenge. Whether such
changes would be advisable and desirable is the subject that the other contributions
to this discussion now address.
64 Schrag, The Future of District of Columbia Home Rule, 39 CATH. U. L. REV. 311 n.162
(1990).
65 U.S. CONST. art. I, § 8, cl. 17.
66 The U.S. Supreme Court upheld the power of an elected local prosecutor to prosecute offenses
against territorial laws-i.e., laws established by Congress in exercising plenary Article I powers
similar to those under which it established the District's judicial branch-over 130 years ago. See
Snow v. United States, 85 U.S. 317,! 321 (1873).

WHO SHOULD APPOINT JUDGES OF THE D.C. COURTS?
Charles A. Miller*
INTRODUCTION
Since 1970, the District of Columbia court system has been comprised of the
District of Columbia Court of Appeals and the Superior Court of the District of
Columbia. 1 From the time of the establishment of the District, judges of its courts
have been appointed by the President of the United States, acting on the advice
of the Attorney General. When the general issue of District home rule came
before Congress in the 1960s, one of the subjects considered was the judicial appointment
process.
In 1970, the District of Columbia Court Reform and Criminal Procedure Act 2
continued the Presidential appointment authority but made the appointments
subject to Senate confirmation. In 1973, in the legislation known as the D.C.
Home Rule Act, Congress modified the judicial appointment process by creating
the District of Columbia Judicial Nomination Commission ("Commission,,).3 This
body is charged with the responsibility of recommending three nominees for
every vacancy on either the Court of Appeals or the Superior Court. The appointment
power is retained by the President, but the selection must be made
from the lists provided by the Commission. Presidential appointments also remain
subject to Senate confirmation.
The system established by the Home Rule Act has now been in place for over
thirty-three years. The issue under consideration by the Third Branch Project is
whether this system for selecting judges of the D.C. courts should be altered to be
more consistent with the goal and concept of home rule. Specifically, this would
mean transferring the appointment power for D.C. judges to the Mayor, and the
approval power to the Council of the District of Columbia ("Council"). This report
identifies the most important considerations relating to that question and
recommends that the appointment and approval powers be transferred to the
elected District officials.
I. How THE CURRENT SELECTION PROCESS WORKS
The heart of the present selection process for D.C. judges is the Commission.
As established by the Home Rule Act, the Commission is made up of seven
* Charles A. Miller, Covington & Burling LLP.
1 See District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub. L. No. 91-
358, § 11-101,84 Stat. 473, 554 (1970).
2 Id.
3 See District of Columbia Self-Government and Governmental Reorganization Act of 1973,
Pub. L. No. 93-198, § 434,87 Stat. 774, 874 (1973).

26 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
members and appointed by five different entities: The President, the Council, and
the Chief Judge of the United States District Court for the District of Columbia
each appoint one member, while the D.C. Bar Board of Governors and the
Mayor of the District of Columbia each appoint two members. Members' terms
on the Commission are staggered.
When a judicial vacancy arises, the Commission seeks applicants for the position
by publishing notice in the Washington Daily Law Reporter. 4 Applicants are
then reviewed by the Commission, a background check is completed, and recommendations
are solicited from D.C. and federal court judges and attorneys who
are acquainted with the applicants. s The Commission also interviews each candidate.
6 No later than sixty days after the vacancy arises, the Commission submits
its recommended list of three candidates to the President, who must make the
selection within sixty days of receiving the list of nominees?
There are certain minimum statutory qualifications for D.C. judges: They must
be United States citizens; they must be D.C. residents for more than ninety days
prior to their appointment and must reside in D.C. during their entire judicial
tenure; they must have been an active member of the D.C. Bar; and they must, in
the five years immediately preceding their appointment, have been actively practicing
law in the District, or been on the faculty of a law school in the District, or
been employed as a lawyer by either the federal or the District governments. s
The D.C. courts are considered to be Article I courts (rather than having been
established under Article III of the Constitution). The primary significance of this
categorization is that the judges do not have life tenure,9 are not protected from
reductions in salaries during their terms of service, and are subject to mandatory
retirement at age seventy. There is a reappointment process established in statute
for those judges wishing to continue serving on the bench. The process is administered
by a different commission-the D.C. Commission on Judicial Disabilities
and Tenure ("JDT Commission"), which was established by the District of Columbia
Court Reform and Criminal Procedure Act of 1970. 10 If that commission
determines that the applicant for renomination is "well qualified," reappointment
is automatic. ll If the JDT Commission finds the candidate to be "qualified," the
President may renominate him or her but is not required to do so. If the President
does not, the position becomes vacant and is filled as are other vacancies. If
4 COUNCIL FOR COURT EXCELLENCE, How THE DISTRICT OF COLUMBIA GETS ITS JUDGES: A
COUNCIL FOR COURT EXCELLENCE COMMUNITY EDUCATION GUIDE 4-6 (2005) [hereinafter CCE
PUBLICATION].
5 [d.
6 [d.
7 D.C. CODE § 1-204.34(d)(2005).
8 D.C. CODE § 1-204.33(b) (2005).
9 Each judge is appointed to a fifteen-year term.
10 See generally Pub. L. No. 91-358, supra note 1.
11 Although, the judge is still subject to mandatory retirement at age seventy.

WHO SHOULD APPOINT JUDGES OF THE D.C. COURTS? 27
the JOT Commission finds the candidate "unqualified," the judge may not be
reappointed, and the position becomes vacant. I2
Over the past thirty years, the JDT Commission has evaluated fifty-eight
judges who were candidates for reappointment. All but three were found to be
"highly qualified." In two cases, the Committee made a "qualified" finding. In
one, the JDT Commission advised the candidate of its intent to issue an "unqualified"
finding. The candidate withdrew his candidacy, retired from the bench at
the conclusion of his term, and, therefore, the JOT Commission did not issue any
finding.
II. RETENTION OF THE ROLES OF THE COMMISSIONS
During the course of the Third Branch Committee's inquiry into the question
of who should appoint D.C. judges, it became evident that there is virtually universal
acceptance of the existing method for developing nominees for judicial
vacancies. The Commission has earned the highest accolades for its independence,
its careful and thorough vetting of nominees, and for the diversity of the
nominees it has forwarded to the President. The Third Branch Committee is
aware of no sentiment for altering this aspect of the judicial selection process.
The "merit" method of selecting judicial nominees mirrors practices now utilized
in a large portion of the states of the union. There are twenty-seven states
that initially appoint their appellate court members by merit appointment, while
the remaining twenty-three do so by election. Twenty states initially appoint their
trial court judges by merit appointment; the other thirty do so by election. In
merit appointment states, the governor or other appointing authority is usually
required to select from a list provided by an independent judicial nominating
commission. I3 Commentators, attorneys, and judges generally agree that the
merit method of selection produces more qualified judges and judges with more
diverse backgrounds than any other method. The Third Branch Committee believes
that this has been the result of the merit selection method employed in the
selection of judges in the District of Columbia for the past thirty-plus years.
Accordingly, it is strongly recommended that, however the issue of who should
appoint judges is resolved, the current method of selecting nominees should be
retained. I4 While there has been much less attention focused on the role of the
JDT Commission in the reappointment process, no objections either to the con-
12 D.C. CODE § 1-204.33(c)(2005).
13 NATIONAL CENTER FOR COURT STATE COURTS, CASELOAD HIGHLIGHTS: JUDICIAL SELEC.
TION 101: WHAT VARIES AND WHAT MATTERS 7 (2006), available at http://www.ncsconline.org/
D _ResearchlcsplHighlightsNoI13N02.pdf.
14 In the event that it is decided to change to a mayoral appointment method of selection, it
might make sense at some point to have someone other than the President appoint the one member
of the Commission that the President now appoints (although this is not a necessary consequence of
such a change). Consideration could be given to giving this appointment authority to, for example, a

28 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
cept or the manner in which it has functioned have come to light during consideration
of this subject, and there is no basis for recommending any change in the
role of that commission.
III. PROS AND CONS OF PRESIDENTIAL VS. MAYORAL SELECTION OF JUDGES
A. Reasons for Mayoral Selection of Judges
The primary impetus for altering the present method of selecting D.C. judges
is the desire to fulfill the home rule aspirations of citizens of the District. The
selection of judges by the President and approval by the Senate is seen as a vestige
of colonialism. The selection process is viewed as inconsistent with the principle
that citizens of the District of Columbia should enjoy all rights enjoyed by
citizens of other states, which include the right to have judges selected and confirmed
by officials elected by the citizens of the District.
The home rule concept is most significantly embodied in the Home Rule Act
of 1973. 15 That bill originated in the House of Representatives and, as reported
by committee to the full House, provided for mayoral appointment and Council
confirmation of judges. However, this element of the reported bill was deleted by
floor amendment by a fairly closely divided vote, and the provisions for Presidential
appointment and Senatorial confirmation were restored. 16
Throughout the nation, appointments of non-federal judges to courts of general
jurisdiction are typically made by the highest elected official in the state, the
Governor, and are usually subject to legislative confirmation. There are some
instances of judges of city courts in which Mayors have the appointment power. 17
For the District, the analogy is not perfect to other states or to other cities.
Geographically, the District resembles other cities, but its powers and functions
include many that would reside elsewhere with state governments. 1S On the other
hand, the District differs from states in that its legislative acts are subject to congressional
oversight, and it does not possess sufficient territory to allow for different
geographic characteristics and population centers that are characteristic of
most states. Nonetheless, those who support changing to a mayoral selection system
point out that the Mayor is the highest elected executive official in the jurisdiction,
and in that sense, is equivalent to the Governor of a state. The Council is
the legislative body elected from the entire jurisdiction. The selection and confirmation
from these offices is said to be preferable to those functions being perpanel
of retired judges, or to the Dean of the U.D.C. David A. Clarke School of Law, or to a panel of
the deans of all law schools situated in the District.
15 See generally Pub. L. No. 93-198, supra note 3.
16 119 CONGo REC. 33635-33641 (Oct. 10, 1973).
17 New York, Denver, Atlanta, and Kansas City are among the more prominent examples.
18 For example, vehicle registration, health care programs, and oversight of the education system
are typical state government functions.

WHO SHOULD APPOINT JUDGES OF THE D.C. COURTS? 29
formed by an executive not elected by the people of the District and a confirming
legislative body that neither is elected by nor contains a representative of the
people of the District.
There appears to be no constitutional barrier to the mayoral method of selecting
judges for the District. Given the broad power of Congress over the capital
district under the District clause of the Constitution 19 and the fact that the courts
are established under Article I rather than Article III of the Constitution, the
authority of Congress to, in effect, delegate the selection process to local entities
cannot seriously be questioned. On the other hand, an Act of Congress would be
required to achieve that end, for, as indicated above, the Presidential selection
process is currently required by the Home Rule Act.
An important point made in favor of the mayoral selection method is that
there is a significant delay in filling vacancies under the current regime. The delay
is derived primarily from the length of time it typically takes to secure senatorial
confirmation of a nomination. 20 Among other consequences, this can substantially
deter lawyers from pursuing judicial appointment. Many lawyers, particularly
those not associated with very large firms, might be unable to sustain their
practices during an indefinite period of time between their appointment and their
confirmation. The delay also impacts the courts, as protracted vacancies in judicial
positions add to the work pressure on the remaining members of the bench.
These points assume that confirmation by the Council would typically occur far
more rapidly.
B. Reasons Against Mayoral Selection of Judges
The case against changing the current method of judicial selection is based on
two principal considerations: (1) That the proposed change would introduce potentially
undue political influence into the judicial process, and (2) that the present
system works well and produces excellent judges. The essence of the first
objection is that, by giving the Mayor the power to select judges and the Council
power to confirm any appointments, the process would become too political. This
concern is exacerbated by the absence of life tenure for judges. It is contended
that some judges would be reluctant to render a decision adverse to political
figures who have a major role in the judicial appointment or reappointment
process.
19 U.S. CONST. art I, § 8, d. 17.
20 A recent study by the Council for Court Excellence reported that for twenty-nine completed
judicial appointments under the Home Rule Act regime for which data was available, the average
time from the forwarding of nominations to the President to the actual investiture of judges was
eleven months. The range of time was between five and twenty-nine months. See CCE PUBLICATION,
supra note 4. Given the sixty-day deadline for Presidential action on nominations forwarded by the
Commission. it is evident that the Senatorial confirmation process was the primary cause of the delay
in completing the filling of judicial vacancies.

30 UNIVERSITY OF THE DISTRlcr OF CoLUMBIA LAW REVIEW
The roles of the Judicial Nomination Commission and the Commission on Judicial
Disabilities and Tenure undoubtedly mitigate this potential adverse affect
but do not entirely eliminate it. Even though the Mayor would presumably be
limited to selecting from a list of three nominees proposed by the Judicial Nomination
Commission, there is concern that cronyism and local politics would govern,
or at least significantly influence, the Mayor's exercise of the selection
power. Those who hold this concern believe that these considerations have not
noticeably influenced the choices that Presidents have made for D.C. judgeships,
though it would be nai've to believe that the Presidential selection is not influenced
by political considerations, albeit different considerations from those that
might influence a mayoral selection.
Likewise, even though judges seeking reappointment are entitled to it automatically
if they are found to be "highly qualified" by the JDT Commission, there
is no assurance that this will be the finding. If the finding is not forthcoming, the
judge's reappointment would be subject to the Mayor's discretion, and thus,
would possibly be influenced by local politics. Given the infrequency of findings
of less than "highly qualified" over the past thirty years, the concerns about political
influence in this aspect of the process may not be weighty. However, even
one instance of denial of reappointment to a judge based on the issuance of decisions
adverse to the appointing authority would be a cause for concern.
It is also argued that the present system produces extremely high quality
judges who reflect considerable diversity and who, by reason of the statutory
qualifications, are part of and attuned to the City and knowledgeable of its legal
system. This position essentially is that the process is not broken and does not
need to be fixed.
Two other points are advanced in opposition to a change in the existing system
which, though perhaps not dispositive on their own, deserve mention. First, there
appears to be substantial support among sitting judges for retaining the current
system. This may derive from the prestige that accompanies an appointment by
the President and confirmation by the Senate. Arguably, the pool of high caliber
lawyers interested in seeking judgeships could be reduced in number or quality if
the process were to be changed, although there is no inherent reason to believe
that would be the case.
Second, the Commission currently relies on the FBI for the conduct of background
checks on prospective nominees. It has no staff of its own to conduct such
checks. There is a question whether the resources of the FBI would be available
were the selection process to be changed. The loss of this resource would make
the process of vetting candidates more difficult. Were the FBI role to be retained,
the District would most likely be asked to contribute to the agency's investigative
costs.

WHO SHOULD APPOINT JUDGES OF THE D.C. COURTS? 31
A final consideration relates to the impact that a change to a mayoral selection
process could have on the funding of the District's judicial system. 21 Pursuant to
the 1997 Revitalization Act,22 the federal government now bears the cost of the
District's judicial system. It is possible that congressional willingness to accept a
mayoral selection process might be linked to the District's resumption of fmancial
responsibility for the judicial system. Suffice it to say here that there is no
necessary connection between responsibility for funding the courts and the process
of selecting judges. Thus, for decades the District government bore the cost
of the judicial system even though the President and the Senate exercised the
selection power. The issue of who selects judges ought to be resolved on its own
merit, though with an eye on the possible financial ramifications of shifting to a
mayoral selection process.
CONCLUSIONS
This study has reconfirmed the value of the Commission in assuring the availability
of judges of high quality and diverse background and of the renomination
process in supporting the independence of the judiciary. Changing the selection
methodology for judges could not be justified if it resulted in the loss of these
components of the current system.
The Commission, the criteria for judicial selection, and the process of nomination
and renomination are all grounded in federal statutory law. Were the selection
power transferred to the Mayor, a question could arise whether this law
could or should be maintained. At least as a theoretical matter, retention of the
current process could be seen as a form of continuing federal control, and in that
sense as inconsistent with the home rule and democracy underpinnings for the
movement to transfer the selection and confirmation powers to the Mayor and
the Council.
Yet there is clearly a federal interest in the District as the seat of government.
Whatever the scope of that interest, it ought to include an independent and high
quality local judiciary. That interest would be advanced by retaining the current
selection process, including the role of the Commission, even if the selection
power is ceded to the Mayor. While it is true that such retention would restrict
the authority of the local government to establish the method of judicial selection,
the congressional imposition of the selection process is akin to a state constitutional
mandate that would similarly restrict the discretion of elected officials. 23
21 The subject of funding of the District court system is considered at length in another essay in
this journal, entitled Organization, Budgeting, and Funding of the District of Columbia's Local Courts.
22 See National Capital Revitalization and Self-Government Improvement Act of 1997, Pub. L.
No. 105-33, § 11-1743, 111 Stat. 251, 752-53 (1997).
23 It is true that state constitutional provisions are adopted by vote of the electorate, whereas in
the present case the selection process would be imposed by the Congress. This makes the analogy to a

32 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
Maintaining the Commission and the current selection and renomination criteria
ought to neutralize the major objection to transferring the selection authority
to local officials-namely, the concern for undue politicization of the selection
process. By constraining the Mayor's discretion to choose only from those nominated
by the Commission, the public should be assured that local politics could
not unduly impact the process. If the Mayor's selections were to reflect a narrowing
of the diversity of the bench, the Commission, as now, would have the ability
to assure that future vacancies will be filled by candidates whose backgrounds
and experience are different from those serving on the courts.
There is no reason to believe that highly qualified lawyers from diverse backgrounds
would not continue to aspire to judicial careers if the selection power
were transferred from the President to the Mayor. Judges are among society's
most respected members. The judicial function, involving dispute resolution and
determination of issues that can be of great public importance, is among the most
satisfying career options for lawyers. Throughout the nation, high quality judges
serve in state court systems without the imprimatur of Presidential selection or
United States Senate confirmation. Given the progressive character of the local
bar, the impressive public service record of lawyers practicing in the District, and
the heightened interest in government often associated with residents of the Nation's
Capital, it is hard to believe that judicial nominees of the highest quality
would not continue to be available under a mayoral-selection system.
In fact, it is likely that transfer of the appointment and approval function to
local officials would broaden the pool of attorneys willing to be considered for
judicial appointments. There appears to be a substantial impediment to such consideration
currently because of the uncertain but generally lengthy time between
nomination and Senate action. This particularly discourages solo practitioners or
those in smaller firms that would be unable to maintain a flow of clients during a
period of prolonged uncertainty over confirmation. Action by the Council on a
mayoral nomination can be expected to be taken far more quickly, thus substantially
diminishing the risk to private attorneys who are nominated for judicial
positions.
Fmally, there is no intuitive reason to believe that the Mayor's selections from
among those nominated by the Commission would be of lesser quality than those
of the President. Rather, to the extent that the candidates are likely to be better
known to the Mayor than to the President, it is not unreasonable to believe that
mayoral selections would be more informed, and in that sense, better.
In the end, the Third Branch Committee believes that the case for appointment
and confirmation of District judges by District officials is compelling. The
current process of judicial selection has yielded a bench that is high in quality,
state constitution less than perfect. But the hybrid and unique nature of the District in the federal
system means that analogies to any comparable structure are likely to be imperfect.

WHO SHOULD APPOINT JUDGES OF THE D.C. COURTS? 33
diversity, and independence. Transfer of the role from the President and the Senate
to the Mayor and the Council, under the current judicial nomination regime,
promises no diminution in quality and has a distinct prospect of greater diversity
(in the sense of legal background and experience) as well as more rapid filling of
judicial vacancies, both of which would be substantial improvements. Even apart
from these specific advantages, the desirability of having judges selected and confirmed
by officials elected by the people who are subject to the judicial power
cannot be overestimated. In a very real sense, the citizens' confidence in the judiciary
will be greater if the selection power is exercised and confirmed by officials
elected by and responsible to the people who inhabit the District. Citizen confidence
in the judiciary is a vital part of the foundation of a democratic government,
and in this case, fortifies the conclusion that the judicial selection process
for local judges ought to be exercised by locally-elected officials.

SHOULD THE DISTRICT OF COLUMBIA HAVE
RESPONSIBILITY FOR THE PROSECUTION OF
CRIMINAL OFFENSES ARISING UNDER THE
DISTRICT OF COLUMBIA CODE?*
John Payton**
I. BACKGROUND
In the United States, the establishment and operation of a criminal justice system
has traditionally been one of the principal responsibilities of state and local
government. This essential governmental function has five basic components:
States and/or their subdivisions, through their legislative bodies, enact comprehensive
criminal laws; state and local police departments enforce those laws; the
state Attorney General and/or the District Attorneys prosecute violations of
those state laws; state and local court systems hear the cases brought under those
criminal laws by prosecutors; and state and local governments are responsible for
jails, prisons, half-way houses, and related services for those under arrest or
incarcerated.
Since the District of Columbia was granted home rule in 1973,1 the District has
been at times responsible for four of these five core functions of criminal justice.
The District currently has responsibility for the D.C. Criminal Code and for
D.C.'s Metropolitan Police Department. It currently has a limited, though important,
role in the selection of the Judges in the D.C. court system. From 1973 to
1997, the District operated both the D.C. Jail and Lorton Prison. In 1997, however,
pursuant to the National Capital Revitalization and Self-Government Improvement
Act of 1997,2 Lorton was closed and the responsibility for housing
those sentenced to prison under the D.C. Code was transferred to the federal
government. As a result, D.C. prisoners are now housed significantly outside the
D.C. metropolitan area,3 and the District continues to operate the D.C. Jail.
* This essay was compiled by John Payton after the Symposium on District of Columbia Democracy
and the Third Branch of Government. Readers of this essay should note that the views,
opinions, and some factual assertions expressed are formulated from Mr. Payton's wealth of experience
in the D.C. court system.
** John Payton is currently a partner at Wilmer Hale LLP. In March 2008, he will become the
next Director-Counsel and President of the NAACP Legal Defense and Education Fund.
1 See District of Columbia Self-Government and Governmental Reorganization Act, Pub. L.
No. 93-198, 87 Stat. 777 (1973) (codified as amended at District of Columbia Home Rule Act, D.C.
CODE §§ 1-201.01-207.71 (2001».
2 National Capital Revitalization and Self-Government Improvement Act of 1997, Pub. L. No.
105-33, 111 Stat. 251 (1997).
3 Although it was not part of the study, there was a strong feeling among the members of the
D.C. Third Branch Project Committee that serious consideration should be given to returning to the
District the responsibility for the housing of D.C. prisoners and related services. The current reality of

36 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW
With respect to who prosecutes serious criminal offices arising under the D.C.
Code, however, the District has traditionally had virtually no role. Specifically,
the Attorney General for D.C. is only responsible for prosecuting a narrow set of
misdemeanors-"violations of all police or municipal ordinances or regulations
and for violations of all penal statutes in the nature of police or municipal regulations,,4
where the maximum punishment is either a fine or jail time of less than
one year. s Additionally, the Attorney General for D.C. is charged with prosecutions
for disorderly conduct and lewd, indecent, or obscene acts. 6 With limited
exceptions, all other criminal prosecutions are conducted in the name of the
United States by the U.S. Attorney's Office for the District of Columbia.'
In short, virtually all D.C. Code felonies and most D.C. Code misdemeanors
are prosecuted by the U.S. Attorney for the District of Columbia. This
prosecutorial power has never resided in local officials. The U.S. Attorney is selected
by the President without any requirement or even custom of consultations
with the District. The U.S. Attorney can be replaced by the President for no
disclosed reason. Again, this replacement process carries no opportunity for District
input. The 1973 Home Rule Act specifically denies the D.C. Council any
authority to change the duties and powers of the U.S. Attorney for the District. s
The issue this essay addresses is whether the responsibility for prosecuting
criminal offenses arising under the D.C. Code should be moved from the U.S.
Attorney to a D.C. governmental entity. If that responsibility should be moved to
the D.C. government, a subsidiary question arises as to where it should be located
in the D.C. government. Should the Attorney General's office be given this responsibility
or should a new prosecutor's office-e.g. a District Attorney-be created?
And, in either event, should the responsible official be elected or
appointed? On these last questions, the essay will describe the various proposals
that have surfaced, but this essay does not take a position on those subsidiary
questions. The most important question is whether or not the District should
have responsibility for the prosecution of crimes arising under the D.C. Code.
all D.C. prisoners being housed long distances from the District in the custody of another jurisdiction
places a hardship on the families of those prisoners and makes it harder for those persons to be
reintroduced to the community when they are released from prison. The D.C. Third Branch Project
Committee is aware of the significant cost associated with this responsibility and the need to account
for it, and we are aware of the need to possibly identify land in the District on which a facility could
be placed to provide the housing. These are very serious obstacles that must be overcome. We believe
that a serious effort to address these issues should be initiated.
4 D.C. CODE § 23-101(a) (2001).
5 [d.
6 [d. at § 23-101(b).
7 [d. at § 23-101(c).
8 [d. at § 1-206.02(a)(8).

SHOULD THE DISTRICT OF COLUMBIA HAVE RESPONSIBILITY? 37
U. REASONS FOR PLACING PROSECUTORIAL RESPONSIBILITY IN THE DISTRlcr.
This is an issue of basic democracy. Just as every state is responsible for its own
criminal laws, every state selects its own Attorney General or local district attorneys
to prosecute violations of those criminal laws. 9 One crucial aspect of
prosecutorial power is prosecutorial discretion. That is, the prosecutor decides
when and how to exercise the power entrusted to the office.
Democracy supplies an important check on the exercise of a prosecutor's discretion.
Democracy helps ensure that the criminal laws reflect the concerns and
values of the community. This democratic accountability of the prosecutorial
function is not present in the District. The priorities of the U.S. Attorney's office
come from the U.S. Department of Justice and are not subject to review by the
D.C. Council, the D.C. Mayor, the D.C. Attorney General, or any official or body
elected by D.C. citizens. If the D.C. Council conducts oversight hearings on how
some aspect of its criminal laws are enforced or not enforced, the U.S. Attorney
can choose to participate or not. If the D.C. Council, the Mayor, or the D.C.
Attorney General indicates that they strongly desire an increased focus on an
area that is not a priority of the U.S. Attorney or the United States, the U.S.
Attorney's office can simply ignore them.
This lack of democratic accountability could result in a dramatic disconnect
between the legislative function and the prosecutorial function. Suppose, for example,
that the D.C. Council passed a law and the U.S. Attorney simply did not
enforce it? As a structural matter, there is no accountability of the prosecutorial
function to any democratically elected office in the District.
Democratic accountability is intimately linked to the perceived legitimacy of a
prosecutor's office. Prosecuting local criminal matters is a prototypical responsibility
of local government. Furthermore, democratic legitimacy comes from connections
to the local community, both structural and operational. In every other
jurisdiction, the prosecutor brings criminal cases in the name of the local community.
In the District, which is unlike any other jurisdiction in the country, local
criminal cases are brought in the name of the United States. It is the United
States that exercises the discretion in the enforcement of the most serious elements
of the District's Criminal Code. That structure signals the disconnect of the
prosecutor from the community from which the criminal laws arise and to which
they apply.
The basic mechanism of governmental accountability in the United States is
democracy. This is not to say that the U.S. Attorney is oblivious to the governmental
and non governmental voices in the District. The office has recently developed
a neighborhood focus for various programs. Furthermore, through some
recent legislation and understandings with the U.S. Attorney's Office, there has
9 Philip O. Schrag, The Future of District of Columbia Home Rule, 39 CATH. U. L. REV. 311,
343 (1990).

38 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW
been some increase in the jurisdiction of the District's Office of the Attorney
General. But, those are incremental changes, not structural changes, and do not
address the overall issue of democratic accountability. It is particularly dangerous
to remove local accountability from the prosecutorial discretion and policy decisions
routinely made by local prosecutors. to These vital priorities "should be in
local hands."ll
This lack of democratic accountability has a larger impact. Right now, the District
does not have the information and governmental perspective of making the
criminal laws and enforcing those same laws. The synergy of that unitary responsibility
is lacking in the District. More generally, like other aspects of the District's
government, the lack of democratic accountability is inconsistent with the
principle that citizens of the District of Columbia should enjoy all rights enjoyed
by citizens of other states, which include a local government that selects local
prosecutors. This does not mean that the prosecutor's office should not enjoy
some independence in exercising its powers. Rather, it means that such independence
should take place within a local democratic structure.
m. REASONS AGAINST PLACING PROSECUTORIAL
RESPONSIBILITY IN THE DISTRICI'
There are two basic concerns with respect to moving responsibility for prosecuting
crimes arising under the D.C. Code from the U.S. Attorney to the District.
First, just about everyone knowledgeable about the District's criminal justice system-private
attorneys, public defenders, prosecutors, and judges-commented
that the U.S. Attorney's Office is well run and does a good job. The U.S. Attorney's
Office enjoys a very high reputation and is able to recruit very good lawyers
to the office. The office is viewed as being "professionally run" and not subject to
local political pressures. Moreover, the mix of local and federal cases in fact enhances
the desirability of the U.S. Attorney's Office. In other words, "if it ain't
broke, don't fix it."
The second concern is implicit in the first-a worry that the District would not
be able to handle this additional responsibility. Or, to put it another way, that
subjecting the prosecutor's office to local political pressures would, in the name
of crude democracy, actually undermine the integrity of the office. Could the
office's current sense of professionalism be preserved in an office within the District
government? Additionally, there have been concerns that the Office of Attorney
General has traditionally been criticized for being under funded,
understaffed, and lacking in appropriate technology. If prosecuting violations of
10 Congresswoman Eleanor Holmes Norton noted this in her keynote speech at the Symposium
on District of Columbia Democracy and the Third Branch of Government. Transcripts of this speech
are located at The District of Columbia Law Review office.
11 Id.

SHOULD THE DISTRICf OF COLUMBIA HAVE RESPONSIBILITY? 39
the D.C. Criminal Code were a District function, that function would be subject
to the budgetary and other problems of the District. The additional cost of an
office responsible for all criminal prosecutions would be su~stantial.
Finally, there are ancillary issues to consider. At present, a range of federal
offices provide services that would have to be replaced. For example, the U.S.
Marshals take care of transportation of witnesses and defendants as well as court
security, and the FBI is a significant investigatory resource to the U.S. Attorney's
Office. The cost of replacing these functions and many others would have to be
accounted for.
The striking reality is that there is little disagreement with regard to either the
reasons for or the reasons against placing prosecutorial authority with the District.
The Council for Court Excellence doubts anyone would argue against the
democratic value in having local control over local criminal prosecutions-a core
function of local government. After all, that is the model of virtually the rest of
the country. Similarly, there is no disagreement that it is essential that the prosecutor's
office, wherever it resides, must be adequately funded and staffed with
good personnel.
More difficult to assess is the reality that the reputation of the U.S. Attorney's
Office is greater than that of D.C. Office of the Attorney General or its predecessor,
the Office of the Corporation Counsel, and this is what attracts good prosecutors
to the office. 12 There is more competition for U.S. Attorney's positions
than for local District Attorney's positions. That, in other words, is not unique to
the District. Yet, no one would seriously argue that other local district attorney's
offices should be folded into U.S. Attorneys' offices because of the enhanced
reputations of those offices.
Concerns about the transition from the U.S. Attorney to a well-funded D.C.
prosecutor's office are not frivolous, but they are no different from those of any
other local prosecutor's office. They also do not overcome our national value for
and tradition of democracy. Nor do they overcome the important accountability
and legitimacy considerations of democracy.
There are also significant issues about how a transition from the responsibility
being in the U.S. Attorney to the District should proceed. For example, are there
discrete criminal matters that could be moved to the D.C. Attorney General's
Office so that this could happen gradually? Could the U.S. Attorney and the D.C.
Attorney General share responsibility for some crimes? Should some personnel
in the U.S. Attorney's Office be "transferred" to the District as part of a transition?
All of these, and other difficult questions, must be carefully considered.
But, the most important question is the basic one of the desirability of the
transfer.
12 This would be true in most jurisdictions.

40 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
IV. IF THE DISTRICT SHOULD HAVE RESPONSIBILITY FOR PROSECUTING
CRIMES ARISING UNDER THE D.C. CODE, WHERE SHOULD THAT
RESPONSIBILITY BE PLACED IN THE DISTRICT GOVERNMENT?
In 2002, 820/0 of District voters approved a referendum calling for a locally
elected District Attorney. 13. The D.C. Council has passed legislation calling for
the amendment of the Home Rule Act to include a District Attorney. Of course,
the reality is that any change to the current arrangement must come from Congress
through amendment of the Home Rule Act, as the D.C. Council is not
authorized to enact any act or regulation relating to the duties and powers of the
U.S. Attorney or the U.S. Marshals for the District. 14
A range of solutions to the lack of D.C. prosecutorial power have been proposed
in or to Congress over the years. All have failed. First, attempts have been
made to alter the role of the Attorney General for the District of Columbia over
the past twenty-five years. IS In 1981, the House failed to adopt legislation introduced
by then D.C. Congressman Walter E. Fauntroy, which would have created
an Attorney General for the District and would have transferred authority over
prosecutions of D.C. crimes to a District Attorney within what was then the Corporation
Counsel's Office. 16 In 1989, Congress again failed to support a bill introduced
by Congressman Fauntroy, which proposed a comprehensive reassignment
of prosecutorial authority.17 The bill was named like its predecessor, the District
of Columbia Criminal Justice Reform Act, and called for a number of changes,
beginning with the establishment of an Office of the Attorney General for the
District of Columbia. 1s Under the suggested plan, the local Attorney General,
aided by a new local District Attorney,19 would have had responsibility for prosecuting
all D.C. Code violations,2° except in cases where the U.S. Attorney Gen-
13 See generally Carol D. Leonnig. Prosecutor's Hurdles Include Money, Time, WASHINGTON
POST, Jan. 13,2007, at B03.
14 D.C. CODE § 1-206.02(a)(8) (2001).
15 The Attorney General for the District of Columbia was formerly known as the Corporation
Counsel of D.C.
16 District of Columbia Criminal Justice Reform Act. H.R. 1253, 97th Congo (1981). The bill
was referred to the House Committee on the District of Columbia on Jan. 23, 1981, but it failed to
advance past the committee stage. See H.R. 1253 Bill Summary, THOMAS (Library of Congress),
available at http://thomas.loc.gov! (select Bill Summary & Status; then 97th Congress; enter H.R.
1253) (last visited Ju1. 19. 2006).
17 District of Columbia Criminal Justice Reform Act, H.R. 168, 101st Congo (1989). The bill was
referred to the House Committee on the District of Columbia on Jan. 3,1989 and subsequently to the
House Subcommittee on Judiciary and Education on Feb. 22. 1989, but it failed to reach the House
floor. See H.R. 168 Bill Summary. THOMAS (Library of Congress). available at http://thomas.loc.gov!
(select Bill Summary & Status; then 101st Congress; enter H.R. 168) (last visited Ju1. 19,2006).
18 District of Columbia Criminal Justice Reform Act. H.R. 168. 101st Congo § 201 (1989).
19 H.R. 168. § 210(a).
20 See ide § 206.

SHOULD THE DISTRICf OF COLUMBIA HAVE RESPONSIBILITY? 41
eral asserted a compelling federal interest. 21 Such cases were to be prosecuted in
United States District Court in the name of the Untied States,22 either with the
consent of the local Attorney General, or,23 if consent from the local official was
not forthcoming, via a non-appealable, automatic 24 certification from the Clerk
of the Superior Court for the District of Columbia. 25
More recently, the D.C. Council and Congress have considered proposals regarding
local prosecutorial authority. In 1998, the D.C. Council, responding to a
resolution introduced by Councilman David Catania, suggested transferring
prosecutorial authority over D.C. Code violations to a local prosecutor. 26 The
Council called for concurrent prosecutorial authority-matching the responsibilities
of the Office of the U.S. Attorney for D.C. and the Office of the Corporation
Counsel of D.C. with respect to D.C. Code violations-to be given to a local
prosecutor. 27 At the federal level, Congress failed to pass the District of Columbia
District Attorney Establishment Act of 2003. The bill, introduced by current
D.C. Congresswoman Eleanor Homes Norton,28 sought to amend the Home
Rule Act 29 and various provisions of the D.C. Code 30 to create a District Attorney
responsible for prosecuting local crimes. Finally, on March 1,2007, Congresswomen
Norton introduced the District of Columbia District Attorney
Establishment Act of 2007, which would establish an elected District Attorney.31
Any of these proposals would bring the District in line with all of the other
state and local criminal justice systems and their reliance on democracy. The
Council for Court Excellence takes no position on the specific means of accomplishing
this important goal.
21 See id. § 216(d)(I).
22 See id. § 216(d)(5).
23 See id. § 216(d)(4).
24 Id.
25 See id. § 216(d)(3).
26 See generally PR 12-671, available at http://www.dcwatch.comJarchives/council12112-671.htm.
27 Id. § 3.
28 The bill was introduced by Congresswoman Norton on Jun. 4, 2003. It was referred to the
House Committee on Government Reform on that date, but the bill did not reach the House floor for
a final vote. See H.R. 2334 Bill Summary, THOMAS (Library of Congress), available at http://
thomas.loc.govl (select Bill Summary & Status; then 108th Congress; enter H.R. 2334) (last visited Jul.
19,2(06).
29 District of Columbia District Attorney Establishment Act of 2003, H.R. 2334, 108th Congo
(2003). Section 2 would amend the Home Rule Act by adding a number of sections, most notably
§ 496, to the Act.
30 H.R. 2334 § 3 would amend, among other provisions, § 23-101 of the D.C. Code (as codified
in 2001).
31 H.R. 1296, 1l0th Congo (2007); see also Congresswoman Eleanor Holmes Norton, Norton
Introduces Bill for an Elected D.C. District Attorney As Part of Her Free and Equal D.C. Series, March
1, 2007, available at http://www.norton.house.gov/index.php (last visited Jul. 19, 2006).

ORGANIZATION, BUDGETING AND FUNDING OF THE
DISTRICT OF COLUMBIA'S LOCAL COURTS*
Peter R. Kolker**
The mechanism for funding the District of Columbia's local court system reflects
the unique and complex character of the District. The means and method of
budgeting for and funding this vital function has evolved over the years, reflecting
the maturation of the District from its pre-Home Rule days to the present.
This evolution is a reflection of the District's growing pains and financial crises,
as well as the unusual symbiosis and tension between the District and the federal
government. The budget system is also the product of the limitations imposed on
the District's restricted taxing authority, which results in a dependency on the
federal government for functions ordinarily performed by local governments.
The current budget system ensures a high, but not complete, degree of independence
for the District's judiciary and provides for a relatively stable funding
source. However, the system also limits the options that the District's legislative
and executive branches have to allocate resources among programs by taking the
courts' budget out of the equation. As the process has evolved, the local judiciary
has become the financial protectorate of the federal rather than District government,
since the courts apply directly to Congress for funds and are subject only to
its budget decisions. The annual bill for the courts' operations and capital budget
approaches $350 million, all currently sought from and paid by the federal government.
In addition, there are substantial expenditures required to support
other justice-related agencies, such as the Pretrial Services Agency, the Public
Defender Service and the U.S. Attorney's Office. Furthermore, the District's
Home Rule charter precludes the imposition of a commuter tax and real estate
taxes cannot be imposed on the substantial federal and embassy property located
in the District. Accordingly, a change in either the budgeting process or the organization
of the courts and related agencies could not be realistically considered
independent of a proposal to replace the substantial income contribution now
made by the federal government as a direct expenditure. The starting point for an
analysis of the current budget process is an understanding of how the D.C. court
system evolved and was funded from the pre-home rule days to the present.
* This essay was compiled by Peter R. Kolker after the Symposium on District of Columbia
Democracy and the Third Branch of Government. Readers of this essay should note that the views,
opinions, and some factual assertions expressed are formulated from Mr. Kolker's wealth of experience
in the D.C. court system.
** Peter R. Kolker, Council for Court Excellence.

44 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
I. HISTORY
A. The Court Reorganization Act of 1970
Both court reorganization and home rule came to the District in the early
1970's. Prior to this time, the District's "special relationship" with the federal
government relegated to the local court system! jurisdiction of only minor criminal
matters and a limited range of civil disputes. This is not unlike the jurisdiction
found in the lowest level of state courts. 2 Remarkably, all felonies, including common
law crimes such as murder, robbery, rape, burglary and the like, were prosecuted
in the U.S. District Court along with federal offenses. That court also had
jurisdiction over such classically local matters as probate administration and divorce,
as well as more important civil disputes, including cases which would not
qualify for jurisdiction in federal courts outside the District. Appellate review of
these trial court decisions reposed in the U.S. Court of Appeals for the District of
Columbia Circuit. 3
By contrast, by the late 1960s, the D.C. Court of General Sessions was the
venue for prosecution of misdemeanors, juvenile offenses, landlord-tenant disputes,
and small claims matters. Appellate review of these decisions was vested
first in the D.C. Court of Appeals. However, the U.S. Court of Appeals for the
D.C. Circuit had discretionary review over the D.C. Court of Appeals decisions,
so that even in local matters, decisions of the U.S. Court of Appeals
predominated over those of the D.C. Court of Appeals. Bar admissions and disciplinary
proceedings were also controlled by the federal rather than the local
courts. The fiscal burdens of these two systems generally followed the subject
matter jurisdiction, with a significant portion of the federal court expenses paid
out of the District's budget.
The administration of justice under this arrangement was unsatisfactory on a
number of levels. First, by the late 1960s the court system was staggering under
the weight of the caseload and was also encountering administrative problems. A
court management study commissioned by the Senate's Committee on the District
of Columbia, as it was then designated, noted that the length of time to
dispose of serious criminal cases was increasing in both the federal and local
courts, and civil case dispositions were also becoming more prolonged. 4
1 The local court system was known at this time as the D.C. Court of Appeals and the D.C.
Court of General Sessions.
2 The jurisdiction of the district courts in Maryland, which is limited to minor criminal matters,
landlord-tenant disputes and civil disputes subject to a modest dollar limit. See, e.g., MD. CODE ANN.,
Crs. & JUD. PROC. §§ 4-101-4-405 (2007).
3 The Circuit Court sometimes referred to as second in importance only to the U.S. Supreme
Court because of its review of many federal administrative agency and legislative decisions.
4 This report was compiled by the Ellison Commission in 1970.

ORGANIZATION, BUDGETING AND FUNDING OF D.C.'S LOCAL COURTS 45
Not surprisingly, this arrangement was unsatisfactory to everyone, including
the District's citizens, who possessed only limited influence over their own courts
because they had no institutional input into the selection of judges or the administration
of justice. At the same time, many federal judges chafed at having to
resolve local disputes, which their colleagues in other districts would never have
touched. The local judiciary also objected to being side-lined by the limits to and
review of the local courts' jurisdiction by the federal appeals court. Finally, Congress
was also displeased with this arrangement. The increasing backlog in the
disposition of criminal cases was thought to undermine the deterrent effect of
criminal law. Furthermore, the U.S. Court of Appeals bench of the late 1960s was
of a particularly liberal character, which resulted in decisions that, while pathbreaking,
went contrary to the more conservative bent of Congress. s Finally,
there was an ever increasing backlog of criminal cases which the federal court
seemed unable to resolve in a timely manner.
These concerns set the stage for the passage of the 1970 D.C. Court Reform
and Criminal Procedure Act,6 which established the D.C. court system as we
know it today: A typically pyramidal structure with the D.C. Court of Appeals at
the apex functioning as the highest court reviewing matters of a local nature.
These decisions were, and are, subject to review only by the U.S. Supreme Court
in the same manner as the decisions of the highest court of a state are subject to
review. Similarly, the Superior Court of the District of Columbia received greatly
expanded jurisdiction over those actions typically comprising the bread-and-butter
of a state trial court system: common law felonies, misdemeanors, juvenile
proceedings, and civil cases falling outside the subject matter jurisdiction of a
federal court elsewhere in the nation. The transition from the pre-1970 system to
the current system was gradual and completed by 1973.
The 1970 court reorganization established an unusual method of governance
for the courts by creating a Joint Committee on Judicial Administration (the
"Joint Committee")? comprised of the chief judges of the D.C. Court of Appeals
and the Superior Court, respectively, plus one associate judge from the Court of
Appeals and two from the Superior Court. Thus, the system was weighted in
favor of the trial court. The judiciary's independence from the executive and legislative
branches of the District's government, as constituted both before and after
home rule, was a hallmark of this arrangement. From then until now, it has
5 Examples of such revolutionary decisions, which had their origins in peculiarly local cases,
included decisions of the U.S. Court of Appeals for the D.C. Circuit in both criminal and civil law
areas. Because the opinions of the U.S. Court of Appeals for the D.C. Circuit were regarded as coequal
with those of the other circuit courts, these decisions resolving local disputes had an impact well
beyond the borders of the District of Columbia.
6 District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub L. 91-358, 84
Stat. 476.
7 See D.C. CODE § 11-1701 (2001).

46 UNIVERSITY OF THE DISTRlCf OF COLUMBIA LAW REVIEW
been the responsibility of the Joint Committee to obtain the budget proposals
from each of the component courts, the Court of Appeals, the Superior Court
and the "Court System,"S and to integrate them into a single budget for the
courts. The individual budgets are submitted to the Joint Committee which may
adjust a component budget only if agreed by four-fifths of the Joint Committee.
Once developed, the Joint Committee's aggregate budget is submitted to the decision
maker for consideration and approval. Even though the reviewer of the
budget has changed, adjustment of the budget by the District's executive or legislative
branches has never been permitted. By empowering the Joint Committee
to develop the courts' budget, the District's executive and legislative control over
this branch of government was deliberately restrained. Concomitantly, the independence
of the budgetary independence of the court system has been
maximized.
This major realignment of jurisdiction resulted in a vast expansion of the local
court system, such that the local trial bench 9 increased from about twelve judges
prior to court reorganization to nearly forty by the end of the transition in 1973.
By 2006, the specified complement of trial judges had increased to fifty-nine ,10
including the Chief Judge, the associatesjudges as well as the judges of the Family
Court. The D.C. Court of Appeals consists of a chief judge and eight associate
judges. All of the District's judges are currently appointed by the President to
fifteen-year terms. Presidential appointment is more of an historical artifact than
a constitutional requirement, however: the constitutional grant of authority to
establish and oversee the District, set out in Article I § 17 of the Constitution,
does not require Presidential (or even federal) appointment of local judges,
though it has been the tradition for at least the past half-century that the President
has done so. Thus, the District's local judges are properly thought of and
referred to as presidentially appointed "Article I judges,,,l1 a feature some think
enhances the prestige of the local bench.
In addition to this full-time judiciary, there are a varying number of senior
judges who work part-time and who are compensated on a per diem basis. 12
There are also twenty-five magistrate judges with limited jurisdiction in the District's
system, who assist with pre-trial proceedings in the criminal, civil, and Family
Court components of the Superior Court. They are neither presidential
appointees nor are they provided a fifteen-year appointment, as are the Superior
Court and D.C. Court of Appeals judges.
8 The "court system" includes the administrative elements of the court including court reporters,
interpreters, and clerical personnel.
9 The local trial bench was formerly known as the Court of General Sessions.
10 D.C. CoDE § 11-903 (2001).
11 D.C. CODE § 11-1501 (2001); see also D.C. CODE § 11-703 (2001).
12 Pier diem, or the maximum that could be earned by a full-time judge.

ORGANIZATION, BUDGETING AND FUNDING OF D.C.'S LOCAL COURTS 47
Since 1970, compensation of D.C. Court of Appeals judges is at the same level
as the compensation of judges of the federal circuit courts of appeal,13 just as the
compensation of Superior Court judges is the same as that of the judges of the
federal district courts. 14 This salary relationship is vital to the recruitment and
retention of the local judiciary who are, with this linkage, assured of some modicum
of steady compensation and of automatic salary increases whenever federal
judicial salaries are raised.
One modification to the judicial structure occurred in 2002, when Congress
again flexed its unique jurisdictional muscles over the District's local affairs by
creating the Family Court. 1S The Family Court is akin to a subsidiary of the Superior
Court, with judges appointed in the same manner as Superior Court judges.
The Family Court's budget is a part of the Superior Court budget, and it is housed
in the same courthouse. Its judges are assigned only to family law matters, such as
juvenile delinquency, divorce, neglect, and guardianship cases. Congress's intervention
in the District's judicial affairs serves as a reminder that the final word on
jurisdictional realignments remains on Capitol Hill. Indeed, the D.C. Code precludes
the District from modifying its court organization or jurisdiction, reserving
those functions to Congress. 16 As the Family Court legislation attests, Congress
can and will intervene in a purely local matter such as this when it is of a mind to
do so.
Court reorganization also assured that support personnel in the local court
system 17 increased in tandem with increases in the judiciary. The local courts now
employ some 1,200 persons. IS Personnel used by the court to keep order remain
part of the U.S. Marshals under the U.S. Department of Justice and are not included
within that number. The District-related cost of the Marshals' service is
also not reflected in the courts' budget.
The advent of a modern, local court system required a new court building to
house the D.C. Court of Appeals, the Superior Court, and the myriad functions
transferred by this jurisdictional change. Concomitantly, the financial burden of
the local court system grew apace, including not only the salaries, benefits,19 and
administrative expenses which had previously been a part of the federal court
budget, but also the expenses of the Criminal Justice Act,20 the D.C. Public Defender
Service, the Pretrial Services Agency, and the probation office. At the
13 D.C. CODE § 11-703(b) (2001).
14 D.C. CODE § 11-904(b) (2001).
15 District of Columbia Family Court Act of 2001, Pub. L. 107-114 115 Stat. 2101.
16 D.C. CODE § 1-206.02 (2001).
17 Such as judicial staffs, probation officers, pretrial release personnel, clerical, and administrative
personnel.
18 D.C. CTS. ANN. REP. at 9 (2005).
19 Benefits include unfunded pension obligations.
20 The Criminal Justice Act compensated private attorneys for defending indigent criminal defendants.
D.C. CODE § 11-2601 (2005).

48 UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEW
same time, the capital costs of the new physical plant and its operations also increased
dramatically compared to the pre-1970 period. By the time the transition
to the local court system had been completed, the entire burden of the judicial
system for adjustment of local disputes had shifted to the District, and the financial
obligation likewise shifted to its budget. At the same time, the District's share
of expenses relating to the operations of the U.S. District Court for the District of
Columbia diminished reciprocally.
B. The 1973 Home Rule Act and the Courts' Budget
The shift of jurisdiction represented a major increase to the empowerment of
local citizens over the dispute resolution matters important to them, but full selfdetermination
for the District was, and still is, a long way off. The next important
event with a significant impact on the court budgeting process was the enactment
in 1973 of the District of Columbia Home Rule ACt. 21 The shift to a governmental
structure accorded more responsibility to the citizens and their representatives
on the D.C. Council provided the occasion for unifying the budgeting process to
team up the courts' budget with the budget for other District agencies and operations.
However, whereas the state model of a pyramidal judiciary22 was replicated
in the jurisdictional aspect of D.C. court reorganization, the anomalies of the
District's situation did not lend itself to a budgeting process in the District to
parallel that used in the fifty states. Unlike the states, which are responsible for
financing all of their routine executive, legislative, and judicial functions from tax
revenue, the special circumstances affecting the District currently prevents the
District from achieving economic self-sufficiency. These special circumstances include
the statutory prohibition on commuter taxation, the non-taxability of land
occupied by the federal government, foreign embassies, or the myriad non-profit
organizations drawn to the seat of national government. Thus, the budgeting process
cannot replicate that of a self-sufficient state. Unless and until the District's
ability to generate revenue in ways that are not currently available to it should
change, the District must look to the federal government for financial support,
with its often unwanted twin: federal control. With this revenue structure in mind,
the budgeting and funding process was bound to take a different tack.
D. THE BUDGETING PROCESS FROM 1970 TO THE PRESENT
A. From 1970 to 1995
Starting with the 1970 Court Reorganization Act, the mechanism for budgeting
and funding of the courts has not been completely independent of the execu-
21 District of Columbia Self-Government and Governmental Reorganization Act of 1973, Pub.
L. 93-198, 87 Stat. 774.
22 With a high court reviewable only by the Supreme Court.

ORGANIZATION, BUDGETING AND FUNDING OF D.C.'S LOCAL COURTS 49
tive and legislative budgeting process. Thus, beginning in 1970, a structure was
put in place to maximize the independence of the judiciary. The budget for the
courts was required to be developed by the Joint Committee rather than the
Mayor. When Congress enacted the District's Home Rule Act in 1973, one of its
objectives was to restrict the capacity of both the D.C. Council and the Mayor to
affect the budget prepared and submitted by the Joint Committee?3 To accomplish
this goal, Section 445 of the Home Rule Act specified that the Joint Committee
must prepare and submit to the Mayor an annual and multi-year budget,
including both an operational and a capital improvement component. The Mayor
was charged with forwarding this budget without alteration to the D.C. Council,
though the Mayor was permitted to comment on its provisions. Similarly, Section
445 of the Home Rule Act required the D.C. Council to submit its budget to
the President, through the Office of Management and Budget ("OMB"). Section
445 provides that the Council "shall have no authority under this Act to
revise the Joint Committee's budget.,,24 Thus, under the Home Rule Act, Congress
alone had the power to increase, decrease, or internally modify the courts'
budget by shifting funds among the courts. In this respect, the budgeting process
for the courts differs markedly from that in effect in the fifty states which, in
many cases, have the capacity to adjust the budget of any branch of government.
Instead, the budgeting process more closely resembles that applicable to the U.S.
Courts: A separate budget is prepared by the Administrative Office of the Courts
and submitted to Congress. 25
It is worth noting that while neither the Council nor the Mayor may modify
the budget submitted by the Joint Committee because of the restrictions outlined
above, both bodies have frequently submitted comments to Congress suggesting
that the courts' budget is excessive. One study, undertaken in 1983, demonstrated
that in each year from 1972 to 1980, the recommendations conveyed by the
Mayor to Congress provided a lower budget amount than that requested by the
Joint Committee. 26 Resources have not enabled a study of more recent trends,
but it is to be expected that the Mayor or the Council might attempt to increase
the budget funds made available by Congress to special programs by encouraging
a reduction in the courts' budget. How this natural instinct would be manifest if
the Council or the Mayor had the authority to modify the courts' budget, now
currently denied them, is a matter for speculation.
23 This is not the only instance in which Congress restricted by statute the power of the D.C.
Council with respect to the administration of justice; the Council may not legislate in respect to criminallaw
matters, nor may it amend the jurisdiction granted to the D.C. Courts. D.C. CoDE § 1-206.02
(2001).
24 District of Columbia Self-Government and Governmental Reorganization Act, Pub. L. 93-
198, 87 Stat. 774 at § 445.
25 Budget Contents and Submission to Congress, 31 U.S.C. § 1l05(b) (2007).
26 S. REP. No. 98-34, at 101 (1983).

50 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW
Upon receipt of the District's budget, Congress considered the court budget at
the same time as it considered other budget requests by the District. Congress
had the authority to accept or modify the courts' budget. Before home rule and
continuing up to 1997, funding of the District's budget included a payment by
Congress known as the "federal payment." This sum, which varied annually, was
to be used by the District along with revenues raised by its own taxing program to
fund the functions of government. Although Congress fixed a budget amount for
the courts, it did not directly fund that amount. Instead, before 1997, Congress
provided the courts with a portion of the federal payment, calculated as a percentage
of the District's approved budget, to the courts. For example, during the
fiscal year 1997, the federal payment represented 14% of the approved budget. 27
While the courts received that amount from the federal payment, the balance of
the courts' budget was dependent upon tax revenues raised and administered by
the District. Thus, approval of the courts' budget by Congress was the first, but by
no means the last, step in the process of funding the court system,28 and if the
District failed to generate sufficient revenues to fund the balance, the Courts
would, and did, come up short of the budget approved for it.
B. The Financial Control Board of 1995
In the mid 1990s, the District's financial picture took a tum for the worse, and
the District appeared headed for possible bankruptcy. To avert such a catastrophic
event and to limit the extent of support that the federal government
would be called upon to provide, Congress enacted the District of Columbia Financial
Responsibility and Management Assistance Act of 1995,29 creating what
was commonly referred to as the "Financial Control Board." With the advent of
the Financial Control Board, all portions of the District's budget, including that
relating to the courts, was reviewed and approved by the Financial Control
Board. The Joint Committee took the position that the Financial Control Board
was precluded from modifying the budget prepared by the Joint Committee, but
it was unclear whether that limitation actually applied to the Financial Control
Board. In any event, the courts' budget continued to be separately formulated,
presented, and administered.
C. The 1997 Revitalization Act
By 1997, Congress believed the District's financial house had still not come to
order. It demanded that additional responsibilities be transferred from the Mayor
27 U.S. Congressional Research Service, District of Columbia Revitalization: The President's
Plan for the Court System, (97-653; June 19, 1997) [hereafter CRS Report 97-653].
28 ld.
29 The District of Columbia Fmancial Responsibility and Management Assistance Act of 1995,
Pub. L. 104-8, 109 Stat. 97.

ORGANIZATION, BUDGETING AND FUNDING OF D.C.'S LOCAL COURTS 51
and the Council to the Financial Control Board. To accomplish this shift, Congress
passed the 1997 Revitalization Act,30 which also terminated the federal payment
to the District. In lieu of a payment, financial support was provided to the
District-the federal government assumed previously locally supported functions.
Because the elimination of the federal payment represented a loss of approximately
$600 million in District revenue, the 1997 Revitalization Act shifted
about an equal value of District functions to the federal government. To round
out and develop an offset to the revenue reduction caused by the terminated
federal payment, the District's obligations for its court system were also assumed
by the federal government, as were the budget burdens of certain other agencies.
31 Pension liabilities and other benefits affecting court personnel were also
assumed by the federal government.
Although the transition from local to federal control provided a source of
greater financial security to the District, the change was accompanied by many
personnel problems as long-time court employees found their pensions and other
benefits sharply reduced as a result of the change. Thus, the transition in the
funding source was not easy.
D. The 1997 Memorandum of Understanding
In anticipation of the passage of the 1997 Revitalization Act, negotiations were
undertaken between the Mayor, the D.C. Council, and the White House concerning
a variety of changes affecting the administration of justice, including but not
limited to arrangements for funding the D.C. court system. 32 A memorandum of
understanding between the D.C. Council and the White House approved a shift
of responsibility for funding the D.C. courts to the federal government. As had
been the practice since 1970, the 1997 Revitalization Act maintained the practice
of having a unified courts budget prepared by the Joint Committee and submitted
to the Mayor and the D.C. Council for review but not alteration. However, since
1997, the budget has been submitted directly to the OMB for transmission to
Congress, not as a part of the D.C. budget, but as the budget of a separate governmental
entity. Congress, of course, remains free to modify the budget as it
desires. Once approved, the budget is funded directly by Congress to a special
account in the U.S. Treasury established for this purpose. 33 Through this technique,
the budgets of various agencies, including those of the D.C. courts, the
Pretrial Services Agency, and the Public Defender Service were transferred to
30 Balanced Budget Act of 1997, Pub. L. 105-33, 111 Stat. 251.
31 Including the District of Columbia Public Defender Service and the Pretrial Services Agency
and Defender Services.
32 CRS Report 97-653 at 7-8.
33 Balanced Budget Act of 1997, Pub. L. 105-33, 111 Stat 251. Initial proposals contemplated
that the D.C. Court budget would be administered by the Administrative Office of the U.S. Courts in
the federal judiciary, but this supervisory control was abandoned in the fmal approach. [d.

52 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
federal control, so that salary, benefits, and other administrative burdens relating
to the operation of the local courts are provided under the aegis of the federal
government, rather than that of the D.C. government. Significantly, by the 1997
Revitalization Act, the federal government also assumed the burden of the unfunded
pension liabilities for the District, estimated at that time to exceed $4.8
billion, a portion of which applied to District judges and non-judicial court personnel.
With the resources of the federal government, however, comes the potential
and occasional reality of interference with local judicial matters- powerful
members of Congress have been known to intervene in local cases and have exerted
pressure on the budget process when a member has disapproved the outcome
of a decision in a particular matter.
III. MAGNITUDE OF THE D.C. COURTS' BUDGET
The D.C. courts are complex and substantial; consequently, the budget for
their operations, including items that do not appear directly in the operational
budget, are very considerable. In fiscal year 2006, the courts' budget request for
operations, including components for the D.C. Court of Appeals, the Superior
Court, and the court system was for $149.8 million. Congress appropriated $138.1
million. In addition, the Courts requested $54 million for capital improvements
and received $44 million. 34 These figures do not take into account a separate
budget submittal for defense services. 3s For fiscal year 2006, an additional $44
million was appropriated for those purposes. Nor do they take into consideration
the value of benefits paid to court personnel or the funding of pension obligations
relating to them.
The capital budget for the courts represents a significant burden over and
above the operational budget. One component is the renovation of the old courthouse.
36 That undertaking will cost in excess of $100 million. Beyond that, expansion
of the Moultrie Courthouse to enable completion of the Family Court and
modernization of the building, now more than thirty-years-old, will require another
$30 million. The total capital budget is projected by the Joint Committee at
$180 million and is now in mid-stream. 37
34 The courts have embarked on a major capital improvement project, including the renovation
of the old courthouse at 451 Indiana Avenue, NW. These improvements include an addition to and an
upgrading of the Moultrie Courthouse to accommodate the Family Court function and a modernization
of "Building C!' These expenditures are budgeted at nearly $180 million in the Fiscal Year 2008
budget request of the Joint Committee.
35 Defense services include payment for court-appointed counsel for persons charged with
crimes or for persons involved in child abuse, neglect, and guardianship disputes.
36 The old courthouse was located at 451 Indiana Avenue, N.W., across from the Moultrie
Courthouse.
37 See Fiscal Year Budget Request of the Joint Committee, available at http://www.dccourts.
gov/reports (last visited Dec. 4, 2007).

ORGANIZATION, BUDGETING AND FUNDING OF D.C.'S LOCAL COURTS 53
IV. SUMMARY OF THE CURRENT BUDGETING PROCESS
Both the operational and capital cost of the D.C. Court system are no longer
an obligation of the D.C. Government. The budgeting process operates entirely
independently of the budget process for most of the District's other functions. 38
While the Mayor and the D.C. Council are provided with a copy of the budget
request when it is submitted to the Office of Management and Budget for ultimate
presentation to Congress, they may comment on the budget but may not
alter the submission. Congress, of course, makes the final decision on how much
of the requested budget will be funded and may take into consideration comments
provided by the Mayor and/or the Council.
v. ANALYSIS AND THOUGHTS FOR THE FuTURE
The District's unique budget process provides the courts with many benefits
that would not be available to it if a traditional state funding model were utilized.
At the same time, the separation of that process from the budgeting process relating
to executive agencies constrains the Mayor and the Council in their fiscal
options by putting beyond the reach of the budget axe the substantial sum paid to
or for the benefit of the courts. Moreover, the continuing role of Congress in
providing the wherewithal for the courts also means that Congress has the capacity,
sometimes exercised, to intervene directly in District judicial affairs.
Under the current plan, the compensation of judges is tied automatically to
that provided to federal district and appellate judges, which undoubtedly enhances
the ability to attract well qualified candidates and to retain experienced
members of the bench. The stability provided by federal assumption of operations,
capital, benefit, and pension obligations relating to the court provides an
additional recruiting and retention advantage. Given the impediments to financial
self-sufficiency for the District manifested by the prohibition of a commuter
tax and the inability to tax federal or diplomatic real estate, which comprise much
of the District's valuable land, it is apparent that the provision of federal financial
support for the courts is an indispensable method of curing what would otherwise
be an intolerable budget burden. In short, federal assumption of these obligations,
whatever the undesired effect of federal control, relieves the District, and
its taxpayers, not only of the routine and heavy burden of normal judicial functions
but also of the extraordinary capital expense which a dynamic judicial machine
is likely to encounter.
38 Recently, legislation has been introduced in Congress to relax or eliminate Congressional
control over the District's expenditure of its local funds. H.R. 733, llOth Cong, (1st Sess. 2007). If
passed, this legislation could significantly alter the method for approval and expenditure of District
funds. It would not, however, affect the process for approving or spending federal funds approved for
the District, whether relating to "entitlement" programs or local functions taken on by the federal
government, such as the Court's budget.

54 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW
The courts' budget, while not sacrosanct, is largely insulated from the political
push and pull that affects other components of the government, thereby assuring
a high degree of independence to the judiciary. Although Congress has been
known to act upon the District's judicial decisions with a heavy hand when, for
example, a member of a Senator's staff receives an unhappy outcome to a case, or
where the political pressure on Congress is translated into a peculiar action limiting
local jurisdiction. 39
Nevertheless, transferring the very considerable financial burden to the shoulders
of the District without locating a matching revenue source would be hard to
imagine, even if the assumption of full control of the judiciary by the District's
residents were a uniformly accepted goal. Because several justice-related agencies
40 must function in harmony and in balance, a change in the funding of one
would have to call into question the funding of the others. Even a partial transfer
of funding, if one could be developed, would require either a significant capital
infusion or a marked reduction in services, compensation, or both. Anything that
would alter the financial stability provided to the court system would likely have
deleterious effects for the selection and retention of judges and of other important
courthouse personnel. Moreover, the provision of defense services by private
counsel and the supervisory pretrial release services provided by the Pretrial Services
agency would also likely suffer. Given the importance of judicial independence,
the high quality of the current judiciary, and the stability provided by the
present financing system, it is difficult to imagine how any changes in the budget
process could benefit the District or its citizens absent a change in the restrictions
on the District's taxing authority. However, if increased financial control were
ceded to the District by elimination of the restriction on commuter taxation, for
example, the issue of budgeting would have to come back under the microscope.
For with the ability to pay all its own bills, which such new taxing authority would
provide, the District might well wish to revisit the options for control and funding
of its courts. That day does not seem near at hand, but if the political winds
change and the District's taxing authority are increased, the budgeting process
would deserve a fresh look.
39 For example, in 1989, Congress passed the D.C. Civil Contempt Imprisonment Limitation
Act and later the Elizabeth Morgan Act, both aimed at over-ruling a politically charged custody case.
See D.C. Civil Contempt Imprisonment Limitation Act, Pub. L. 101-97, 103 Stat. 633; Elizabeth Morgan
Act, D.C. CODE § 11-925 (2001). The latter was held to be an unconstitutional Bill of Attainder,
but this escapade still demonstrates that when it comes to the District of Columbia nothing, and
certainly not the courts and their jurisdiction, is beyond the power of Congress. Foretich, et al. v. U.S.,
351 F.3d 1198 (D.C. Cir. 2003).
40 Agencies such as the U.S. Attorney's Office, the Public Defenders Service, and the courts
themselves.

EDITED PROCEEDINGS FROM THE SYMPOSIUM ON
DISTRICT OF COLUMBIA DEMOCRACY AND THE
THIRD BRANCH OF GOVERNMENT
***
Keynote Address of
Congresswoman Eleanor Holmes Norton*
A symposium on the District of Columbia's third branch of government is as
rare as an analysis of how to achieve the appropriate local control. The District's
jerry built justice system is almost never put under the microscope. The justice
system here is headed by a presidentially appointed U.S. Attorney for the District
of Columbia, whose jurisdiction is drawn chiefly from the local D.C. Code. He
plays the part of local District Attorney because almost two-thirds of his cases
have no federal content. Considering the new place of security matters following
9-11, the U.S. Attorney here should be dedicated to security and administrative
law cases, some of which, by law, are assigned to the D.C. Circuit and to other
federal matters. The courts are similarly mismatched. TItle I judges are appointed
by the President of the United States, but they draw their authority exclusively
from the D.C. Code and have no federal jurisdiction. The Metropolitan Police
Department, however, is without similar pretense. The D.C. Police Chief is appointed
by the Mayor of the District of Columbia for the purpose of policing the
streets of this city. The initial Home Rule Act did not even concede that a free
people must be free to police themselves. However, the District's first Mayor,
Walter Washington, insisted that the District receive appointment authority and
jurisdiction over its own police department.
One is left to wonder whether initial congressional opposition to autonomous
police governance was a remnant of more than 150 years of colonial power during
which, except for a few short years, there was no Mayor, City Council, and in
short, no democracy of any kind for the residents of the Nation's Capital. The
authoritarian rulers who controlled the home rule process, many of them Southern
Democrats, perhaps desired to retain control over an armed potential revolutionary
police force! Only a Congress that held absolute dictatorial power for
nearly two centuries would have imagined a city where a chief executive would
be expected to keep the public safe but could neither hire nor replace a chief who
failed at this mission.
The District got the right to police but not to prosecute. Judgment was to be
pronounced by men and women chosen by a sovereign who would be foreign to
local concerns. Recently, at least, the District has been relieved of the double
outrage of paying for courts the city does not control. During the fiscal crisis of
* Congresswoman, District of Columbia.

56 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW
the 1990s, the District sought relief as the only city required to shoulder state
costs. The federal government agreed to pick up some, though not all, state costs
and the District remains the only city that pays for many state costs. However,
the Revitalization Act of 1997 placed the cost of the D.C. courts with the federal
government and committed D.C. felons to the federal Bureau of Prisons that now
pays for their incarceration. Although only our statehood bill, which we got to
the House floor in 1993, would bring equal status to the District, statehood will
be impossible until the District is able once again to pay for all state functions
and, of course, until the political climate allows this preferred option. In the interim,
our "Free and Equal D.C." series of bills, would give the city control over
its core functions of budget, legislation, and criminal justice. With the shift in
control of the Congress, important elements of the Free and Equal Series are out
of subcommittee and expected on the floor in the next few months.
However, considering the incremental ways of the Congress, the remaining
components of the District's home rule, including a coherent justice system, probably
will not come together all at one time. Of the outstanding componentsprisons,
courts, and a district attorney-which should have priority for local control?
Reclaiming prisons presents the most formidable obstacles, particularly cost
and the absence of land, sufficient and suitable, for the facility. The courts would
rank second in cost that the city would have to assume.
Recently, the Congress has been mostly benign, even helpful to local courts,
spending millions of dollars in renovation of the historic court house needed for
the D.C. Court of Appeals and other infrastructure. Of even greater significance,
however, was the creation of the new Family Court Division, the first change in
the D.C. Court system in thirty years. Our unlikely partner in writing the Family
Court Act of 2001 was then Majority Leader Tom "the Hammer" Delay, whose
concern for foster children led him to co-author the bill with me. This bill also
afforded up to fifteen new superior court judges and fifteen new magistrates to go
with a specialized and upgraded Family Court Division.
A D.C. District Attorney and his staff would not only be the least costly for
the District to add to its budget, but residents have signaled the importance of
claiming prosecution of crimes by voting for Referendum 14-494. No function of
government is closer to the people than ensuring safety and security. It is no
accident that the District Attorney in many jurisdictions often is an elected official,
an indication that she must be appointed by the people to enjoy the confidence
of the people. However, a presidentially appointed U.S. Attorney with a
federal mandate comes with a writ that structurally will interfere with his primary
mission to solve and prosecute local crimes. Recent U.S. Attorney appointments
have been unrelated to the city where the mission must be carried out. Selections
here have been Justice Department patronage appointments. The current U.S.
Attorney was a special Assistant to two of the most recent Attorneys General:
John Ashcroft and Alberto Gonzales.

EDITED PROCEEDINGS FROM THE SYMPOSIUM ON D.C. DEMOCRACY 57
One sure indication that the District of Columbia and its residents have figured
little in the appointment of V.S. Attorneys here is the fact that Eric Holder,
appointed in 1993, and Wilma Lewis, who succeeded him in 1998, were the first
African Americans to hold the post, although the city has long had a black majority.
Wilma Lewis also was the first and only woman. Yet the District has long had
a usually large number of exceptionally well-qualified African American
attorneys.
When Bill Clinton became president, we began the process of localizing the
V.S. Attorney by seeking senatorial courtesy for local federal appointments. I
argued that in the absence of senators, the House Member, like senators of the
President's party, should select the V.S. Attorney, District Court judges, and the
V.S. Marshall. As a result, I was able to appoint twelve district court judges,
including the first Hispanic and the first woman in almost fifteen years. All resided
in the District of Columbia. Each received considerable praise from the
profession when appointed and have vindicated this confidence during their tenure
on the court. Their qualifications were assured because I chose to exercise
this authority through a commission of well-qualified D.C. residents chaired by
former president of the District of Columbia Bar, Pauline Schneider. I sent one
name for each office to the President from a list of three forwarded to me by the
commission after its extensive review of the qualifications of all who applied.
However, even an improvement that allowed the participation of D.C. residents
in the selection of a federally appointed local prosecutor falls far short of healing
the breech between the prosecutor of local crimes and the people he must serve.
A telling example of the distance between residents and the V .S. Atto~ey
here is the troubling pattern by that office of repeatedly seeking the death penalty
in this strongly anti-death penalty jurisdiction, despite an unbroken chain of
failures with juries in the federal courts. The District of Columbia eliminated the
death penalty shortly after obtaining home rule, and the penalty has not been
applied to crimes committed in the District since 1957. Every Mayor and City
Council since have opposed the death penalty. Congress imposed a death penalty
referendum on the District in 1992 in the midst of a seriously escalated homicide
rate, but residents nevertheless voted by a two to one margin against re-imposition
of the death penalty. In 1997, the City Council again took action indicating
that the District's elected representatives oppose the death penalty.
The V.S. Attorney's stubborn insistence on the death penalty has failed, measured
by its own terms. A review of criminal activity since the District obtained
home rule in 1974 shows that this decade has seen a remarkable drop in homicides
and other violent crimes, notwithstanding the absence of the death penalty.
In fact, crime in the District, including homicides, was at a twenty-one-year low
last year and has been significantly trending down for years. Particularly in this
climate, death penalty prosecutions have wasted scarce resources at a time when
the V.S. Attorney's Office here has been so punished by insufficient staff attor-

58 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
neys that the office is seeking volunteer attorneys to help with the case load.
Worse, the repeated prosecutions defy the necessary sensitivity to the families of
the victims and the involved communities, where speedy convictions and resolutions
have been delayed needlessly and inordinately. Repeating a process that
keeps failing with no sign of breakthrough or success has been particularly futile,
considering that residents are not opposed to life in prison without parole.
Nevertheless, the U.S. Attorney's Office has found a basis in federal law under
the Racketeer Influenced and Corrupt Organizations Act ("RICO") for its death
penalty cases, although the underlying crimes, such as murder and armed robbery
are typically prosecuted by local jurisdictions. I have no quarrel with vigorous
and relentless prosecution of these cases alleging particularly serious crimes, including
killings and drug trafficking, in this high crime-rate city. Nor are federal
RICO prosecutions of local crimes always necessarily unwise. The death penalty
may be requested for the federal crimes, but this matter of prosecutorial discretion.
The troublesome issues go not to matters of law or jurisdiction but to the
wisdom and justice for all concerned of repeated prosecutions that inevitably fail.
The U.S. Attorney's Office has persisted, despite the unsurprising resistance of
juries here to agree to the death penalty, even in notorious federal cases, such as
the Murder, Inc. gang case of Kevin Gray and Rodney Moore, where the jury
deadlocked on the death penalty in 2005. In 2006, a federal district court disallowed
a death penalty prosecution here involving American tourists in V ganda
because the V.S. Attorney's Office was unable to meet the required death penalty
standards. Most emblematic of the V.S. Attorney's no-holds-barred approach
to the death penalty, however, was the V.S. Attorney's attempt to get the
District court to remedy the professional negligence of his office in missing an
indispensable deadline. The U.S. Attorney tried, but failed to obtain a waiver
that would have allowed a death penalty prosecution to proceed in the Antwuan
Ball and David Wilson RICO case. Yet reflexively, prosecutors are quick and
resolute in arguing against relief from missed deadlines by lawyers for death row
defendants, regardless of the reason and notwithstanding the finality of the sanction.
Repeatedly seeking the death penalty, even where the V.S. Attorney had
committed a fatal error, risked the appearance of an office seeking to show it can
get death penalty convictions anywhere, even in the notoriously anti-death penalty
District of Columbia. A District Attorney who had to face the people for
election probably would think more carefully before seeking the death penalty
for similar crimes after meeting consecutive failures with juries.
Transferring the entire justice system to the District presents far more difficult
logistical, cost, and political issues than shifting the myriad of other home rule
issues that remain with the Congress. The District is considerably closer to budget
and legislative autonomy, for example, than it is to control of its prison felons and
courts or to its own district attorney. Nevertheless, continued disaggregation of
the component parts of a free standing local jurisdiction is an anachronism that

EDITED PROCEEDINGS FROM THE SYMPOSIUM ON D.C. DEMOCRACY 59
demonstrably impedes the normal functions of government. Inconsistency with
the basics of democracy, inefficiency, and incoherence, however, will not decide
these issues. Like every injustice that the District still shoulders, however indefensible,
and every flaw in our government however clear, determined struggle
bolstered by critical analysis will be required for transformation.

EDITED PROCEEDINGS FROM THE SYMPOSIUM ON
DISTRICT OF COLUMBIA DEMOCRACY AND THE
THIRD BRANCH OF GOVERNMENT
***
A THIRTY-YEAR RETROSPECTIVE
Comments of
The Honorable Gregory E. Mize (Ret.)*
I come to the discussion with feeling and with, in all honesty, trying to muster
modesty, because the subject of this symposium is the judiciary in which I actively
participated for twelve years. So, to say what I say, and not kind of like stroke the
bench that I'm so proud to come from is, well, a risk. But I say, with all modesty,
that I am of the school of thought that [the D.C. Courts are] not broken. We have
much to be proud of with respect to the bench-both appellate and trial. Of
course, like so many things in life, it needs to be improved and, looking at the
principles of democracy, there's a long way to go in this community and in this
city of ours.
For eight years I was, as was indicated earlier, the Chief Legal Officer for the
District of Columbia City Council, and before that, I was David Clarke's righthand
man and lawyer from 1975, in the first elected council. I saw that group,
including Sterling Tucker and Marion Barry and others grow into the job of being
an elected official. Also, with the fire of David's passion, heard, many a time,
criticisms of the local bench and that federal [control] needs to be reduced. So I
come from that background, a long time ago.
But since then, not only having served on the bench with pride-and it's a
bench, I might say that thanks to our D.C. Bar, we judges, every five years, get a
confidential set of feedbacks from lawyers. So I hear, without the name of the
lawyer, what they think of me on the bench. We all get that feedback.
And we have a Judicial Disabilities and Tenure Commission that is not in the
state capital several hundred miles away; but we have that Tenure Commission
down the street, a local phone call away. On your way to or from the courthouse,
you can just take a little detour and report what really bugs you about Judge X.
So there are a lot of ways to criticize, when needed, and to cure problems.
Most recently, in the last three years, I have been involved in a national research
effort for the National Center for State Courts to figure out how judges
manage jury trials in every general jurisdiction trial court of this nation. And to
get that research completed, I had to talk to just about every chief justice of every
* Gregory E. Mize was a D.C. Superior Court Judge from 1999 to 2002. He is currently a Judicial
Fellow at the National Center for State Courts.

62 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
state supreme court, many chief judges of large urban courts, many trial judges,
and many Bar leaders across the country.
What struck me was that this is a very big country, and most of our judges are
elected. And, wow, what a difference that can make. So I've talked to judges in
Texas recently. More than half of the general jurisdiction trial judges in Dallas
County were kicked out of office last November when a lot of partisan voting, all
party-lines, took place. People were tired of the Republican administration in the
Nation's Capital. They took it out on the Republican judicial candidates in Dallas,
and I'm sure it happened elsewhere around the country. Some great judges
got kicked out because of politics.
Throughout the country, state capitals are cutting back the budgets of courts,
sometimes, in retribution for [ their courts] finding a statute unconstitutional.
Sometimes [retribution occurs] because a hot-button issue such as same-sex marriage
[was decided] or just plain old dollars and cents [were affected]. At times
legislators can't afford to even give judges a pay increase. And so the [state] senators,
the [state] representatives, and the governor cut the budget or don't increase
it. So there's that landscape out there that I'm mindful of.
I'm also, and more to the heart of the matter, thinking this town will always be
a hybrid place. It's the seat of the national government. If we think that the federal
government is going to stay out of affairs here completely and that we'll have
total home rule, we are just dreaming. When the President, who has to worry
even more so nowadays about Homeland Security and the Nation's Capital as a
target, for the President-any President-to give up executive power and participation
in the governance of the District of Columbia is a dream.
The Congress and the federal government this year funds the D.C. Court of
Appeals to the tune of $9.1 million; the D.C. Superior Court at $86.4 million; the
court system at $41 million; and the capital budget at $79.1 million. So the federal
government pays $216,720,000.00 of federal dollars for the court system in its
various aspects. If we expect the entity that pays the bills to step back and not get
involved in the appointment of the judiciary, I think that's dreaming.
I think the federal government does have a role, and the local government
does have a role. I think that our current system will work even better when not
only does Congresswoman Norton get a vote in the House of Representatives,
but we also have two senators who get votes in the Senate. When a vacancy occurs
on the bench, the President should look to the Senators for the District of
Columbia and the Nomination Commission and ask "Do you have some input on
who this should be?" I believe that those two Senators and the Congresswoman
should and will have an influence on the resource issues that pertain to the administration
of justice here.
Indeed, we need more democracy in our home here. Yet I don't think it realistically
needs to or should come from giving our elected mayor, who I'm very fond
of, judicial appointment authority.

EDITED PROCEEDINGS FROM THE SYMPOSIUM ON
DISTRICT OF COLUMBIA DEMOCRACY AND THE
THIRD BRANCH OF GOVERNMENT
***
THE DISTRICT OF COLUMBIA'S JUDICIAL SELECTION
PROCESS: THE GOOD, THE BAD, AND THE UGLY
Comments of
Patricia M. Worthy*
It is a great honor to participate in the critical discussion of the selection of the
District of Columbia's Third Branch. I want to thank the sponsors of today's
Symposium, the Council for Court Excellence and the David A. Clarke School of
Law for appreciating the value of such a dialogue given the unique characteristics
of the existing selection process and its impact on the daily lives of the citizens of
this great city.
I am proud to be able to state that I was the longest serving Chairperson of the
District of Columbia Judicial Nomination Commission ("Commission,,)1 and,
thus, extremely pleased when invited to comment on whether, in my opinion, any
changes are warranted to the present judicial selection process. 2
Before I begin my remarks, however, I want to take a few moments to share
my views on one of the questions posed by the Third Branch Project. That is, the
question of whether the judicial selection process should be altered to better capture
the ideal and goal of home rule. Stated differently, whether we should seek
authorization to transfer the appointment authority from the President of the
United States to the Mayor of the District of Columbia and reassign the approval
* Former Chairperson of the District of Columbia Judicial Nomination Commission and Professor
of Law, Howard University School of Law. I want to express my appreciation to my research
assistants Clarion Johnson and Shannon Stokes.
1 I served as a member of the Commission from 1992 until 2005 and as its Chairperson from
1994 until 2004. However, the views expressed in these comments are my own.
2 The Commission is comprised of seven members. One member is appointed by the President
with a five-year term while the remaining members serve for six year terms on a staggered basis. 1\vo
members are appointed by the Mayor; two members are appointed by the Board of Governors of the
District of Columbia Bar; one lay member is appointed by the D.C. Council; and one member is a
federal judge appointed by the Chief Judge of the United States District Court for the District of
Columbia. The Commission is charged with the responsibility of recommending three nominees for
every vacancy on either the Court of Appeal or the Superior Court. The appointment authority rests
with the President, who is restricted in his selection from the names provided by the Commission and
his appointment is subject to Senate confirmation. See District of Columbia Self-Government and
Governmental Reorganization Act of 1973, Pub. L. No. 93-198, 87 Stat. 774 (1973).

64 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
authority away from the United States Senate to the Council of the District of
Columbia.
As you all know, in the United States, the vast majority of state judges are
elected. 3 Some contend that making judges directly accountable to the people
both allows the electorate to define the limits of acceptable judicial conduct and
promotes discussion about evolving standards of judicial conduct,4 while others
contend that judicial elections increase the representation of women and minorities
on the bench. 5 Because of these and other factors, I would ask that we not
totally ignore or abandon a debate that includes the possibility of judicial selection
through the electoral process in the District of Columbia. As a legal ethics
professor, I clearly understand the potential harms associated with judicial elections.
Judges and judicial candidates are constantly pressured to speak on such
current issues as the death penalty and abortion. Furthermore, the Code of Judicial
Conduct generally cautions that judicial candidates should refrain from making
"pledges, promises, or commitments that are inconsistent with the impartial
performance of the adjudicative duties of judicial office.,,6
Spending on campaigns in 2004 for state Supreme Court positions rose to $42
million nationwide, an increase of almost $30 million from just two years earlier. 7
Commentators are concerned that spending in these elections is likely to continue
to increase and "pressure on candidates from interest groups seeking fIrm
commitments, in writing, on controversial issues is likely to intensify."s However,
there has been a trend toward reform in judicial elections. More than thirty states
have adopted some form of nonpartisan judicial election procedures as a way to
minimize inappropriate partisan political influence on courts, judges, and their
3 States in forty-eight jurisdictions identify the tribunals representing the highest level of judicial
review "supreme courts," and of this number, thirty-eight states have some type of judicial election.
States in thirty-nine jurisdictions hold some form of elections for trial courts. A.B.A. Standing
Committee on Judicial Independence, Fact Sheet, available at http://www.abanet.orgljudindljeopardy/
factlhtml (last visited June 7, 2006).
4 Ryan L. Souders, A Gorilla at the Dinner Table: Partisan Judicial Elections in the United States,
25 REv. Lmo. 529,548 (2006).
5 Tanya L. Green, The American Judiciary: Understanding Federal and State Courts, http://www.
cwfa.orgl (search "merican judiciary," then click on first hyperlink).
6 See ABA MODEL CODE OF JUDICIAL CONDUcr, Canon 4.1(A)(13)(2003). Note that as a result
of the Supreme Court's decision in Republican Party of Minnesota v. White, 536 U.S. 765 (2002)
this particular Canon has been revised to ensure adoption of a more narrow interpretation of the
"pledges" and "promises" clause. See particularly Comments 11 through 15. For an excellent discussion
on the limits of judicial speech during election campaigns following the White decision, see Roy
A. Schotiand, Should Judges Be More Like Politicians?, 39 Cr. REv. 8 (2002).
7 Judicial Politics Run Amok, N.Y. TIMES, Sept. 19,2006, at A24.
8 Id. The average cost of winning in 2004 increased forty-five percent from the elections just two
years earlier, to over $650,000. The candidates raising the largest amount of money were successful in
over eighty percent of the elections. See ROOER WARREN, STATE JUDICIAL ELEcrIONS: THE POLl.
TIZATION OF AMERICA's COURTS (2006).

EDITED PROCEEDINGS FROM THE SYMPOSIUM ON D.C. DEMOCRACY 65
judicial decisions. 9 As a citizen and long-time resident of this wonderful city,
where historically so few oppor~unities have existed to exercise a right to vote,10 I
would hope that we would at least consider discussing the value of nonpartisan
elections for our judicial officers.
A debate as to whether or not to have the Mayor or the President of the
United States select our judges must be joined by a discussion of the value of
having the electorate make this most important decision. This notion must, in my
opinion, stay as a viable option and not be relegated to a footnote in the final
position paper on the topic of judicial selection. There must and should be a
dialogue, and the dialogue should include all of the citizens in our fair city, and
not disputed among narrowly defined groups associated with only one or two
discrete interests. The debate must include the people who actually appear before
these judges, and whose lives depend on justice being dispensed by our courts in
a fair and compassionate manner. I hope these comments will be received in the
spirit they were given, and that is to encourage diversity of viewpoint and celebrate
social justice. Now on to the topic of my discussion-the Commission's
selection process, and whether, in my opinion, change is warranted.
It would be inexcusable if I did not begin my comments today on the "good"
elements of our present selection process. The existing process has resulted in a
bench comprised of the finest judges anywhere in the nation, and I am extremely
proud of both the men and women who serve on the District of Columbia Superior
Court and Court of Appeals. Many of our citizens have no clear idea as to
the intellectual and personal strengths of the jurists who serve on the local court.
Think for just a moment about the sheer number of judicial officers that were
serving in our court system when the federal government appropriated their talents
for the benefit of the District of Columbia Circuit. II
9 [d. at 15.
10 In 1820, District of Columbia residents petitioned Congress for a municipal charter, which
made Washington an incorporated city and gave them the right to elect a local legislature (called a
Council) that could pass laws and levy a tax on real estate to pay for city services. However, the
President still appointed the city's Mayor. In 1963, District of Columbia residents won the right to
vote for President and Vice-President of the United States with the ratification of the 23rd Amendment
to the Constitution. Four years later, citizens were granted the authority to elect a School Board.
In 1970, the District of Columbia residents gained a nonvoting delegate to the House of Representatives.
Fmally, in 1973, the Home Rule Act was enacted by Congress and ratified by the citizens in a
special referendum. District of Columbia residents were finally allowed to elect a Mayor and Council.
In addition, the citizens voted to approve the election of Advisory Neighborhood Commissioners who
advise the Council on neighborhood concerns. Council of the District of Columbia, History of Self­
Government in the District of Columbia, http://www.dccouncil.uslhistory.html (last visited Nov. 13,
2007).
11 Hon. Ellen Segal Huvelle, Hon. Norma Holloway Johnson, Hon. Henry H. Kennedy, Jr.,
Hon. Gladys Kessler, Hon. Colleen Kollar-Kotelly, Hon. William Pryor, Hon. Judith W. Rogers, Hon.
Emmet Sullivan, Hon. Ricardo M. Urbina, Hon. Reggie B. Walton. United States District Court for
the District of Columbia, http://www.dcd.uscourts.gov/judge-info.html (last visited Nov. 13, 2007);

66 UNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEW
In addition, I must also recognize the quality of the Commission members who
have traditionally been a group of dedicated, hard-working individuals who invest
many, many hours in the service of the city and its citizens. These are people
who, for the past several years, have received no compensation, other than the
satisfaction that they were making a contribution toward continued judicial excellence.
They worked tirelessly, on a nonpartisan basis, to ensure that our local
courts reflect the diversity of its community and reap the benefits of a city
steeped in outstanding legal talent. Having acknowledged both the high quality of
our judicial officers and the talent and dedication of the Commission members,
how, you ask, could one possibly suggest that there are also "bad" and "ugly"
qualities associated with the existing selection process?
First, it must be obvious to all that Presidential appointments to the District of
Columbia courts do not illicit the same degree of interests, vigilance, and commitment
that accompanies comparable appointments to the federal bench. This is
made clear by the deficient administrative structure utilized by the Office of
White House Counsel to manage our judicial selections. More specifically, the
procedures established to handle the selections for the District of Columbia have
varied with each new President, White House Counsel, and ultimately, the Associate
White House Counsel ("Associate") assigned the responsibility of working
with the Commission. This is of great importance, because during the period that
I was Chairperson, we experienced a substantial number of personnel changes in
the Office of White House Counsel, which frequently impacted the adequacy and
efficiency of the selection process. 12 Each White House Counsel designated one
Associate after the other to manage the District of Columbia's judicial selection
process. 13 Though competent and well meaning, they often lost the official files of
the Commission, forgot the procedures associated with the process, and often
needed assistance to ensure that deadlines were satisfied. Individuals would resign
from their positions without the courtesy of notice to the Commission or
District of Columbia Court of Appeals, http://www.dcappeals.gov/ dccourtsl appeals/judges.jsp (last
visited Nov. 27, 2(07); http://www.jtbf.orglindex.php?src= (click on "Integration of the Federal Judiciary",
then click on "Biographies of African American Judges", then click on "Judith Rogers"); http://
www.jtbf.orglindex.php?src= (click on "Integration of the Federal Judiciary", then click on "Biographies
of African American Judges", then click on "Norma Holloway Johnson").
12 During my tenure as a Commission member, Abner J. Mikva (1994-1995); Jack Quinn (1995-
1996); Lanny Davis (1996-1998); Charles F.e. Ruff (1998-1999); Beth Nolan 1999-2(01); Alberto
Gonzales (2001-2005); and Harriet Miers (2005-2007), served as White House Counsel. During that
same period, Christopher Bartolucci, Brad Verenson, Mark Childress, Michael Drummond, Charles
S. Duggan, Tun Flanigan, Dabney Friedrich, Brett Kavanaugh, Naomi Rao, Theodore (Ted) Ullyot,
and John Yarowsky served as Associate White House Counsel designated to work with the Commission.
E-mail from Peggy Williams Smith,Executive Director, D.C. Judicial Nomination Comm'n, to
Patricia M. Worthy, Professor of Law, Howard University School of Law (Nov. 14, 2oo7)(on file with
author).
13 These individuals were responsible for such duties as scheduling interviews, initiating background
checks, and issuing press releases.

EDITED PROCEEDINGS FROM THE SYMPOSIUM ON D.C. DEMOCRACY 67
advising the newly designated Associate the legal requirements and responsibilities
associated with the selection process. We had to train people over and over
again. They didn't know the candidates, they didn't know us, and we always understood
that we would never be a priority in an office dealing with legal issues of
national and international importance. In fact, when terrorist attacks necessitated
heightened security at the White House, our fortitude was profoundly tested in
our efforts to find ways to deliver important documents to the White House in a
timely manner.
Another important and "bad" thing associated with having our existing selection
process is the insertion of national interests into what should be solely matters
of local concern. One of today's commentators has explained that a major
objection to having the Mayor, as opposed to the President, appoint judicial candidates
was the potential of unduly politicizing the selection process. 14 We would
be extremely naive to advance the notion that politics plays no role in the present
selection of jurists. My experience at the Commission would suggest a very different
dynamic. Politics clearly plays a role once the Commission has forwarded to
the White House the list of three judicial candidates. The difference is that the
politics that are in play have national as opposed to local implications. In other
words, the people who are ultimately sent over by our Commission are extremely
qualified, and most, but not all, have strong ties to the community. The candidate
selected, however, may well have benefited from relationships in the Congress,
the White House, or national organizations and have no ties or commitments to
the local community.
Finally, there is the "ugly" fact that our judicial nominees are faced with
lengthy and stressful delays during the Senate confirmation process. During my
tenure as Chairperson, we have had, on more then one occasion, nominations
languishing in the Senate for more than a year. IS The judicial nominations to the
District of Columbia Superior Court and the Court of Appeals are not managed
in the customary fashion. The names of judicial candidates are not submitted to
14 See Charles A. Miller, Who Should Appoint Judges of the D.C. Courts, 11 UDC/DCSL L.
Rev. 25 (2008).
15 The Hon. Patricia Broderick was nominated by the President on February 11, 1997, and
confirmed by the Senate on October 21, 1998. The Hon. Gregory E. Jackson was nominated by the
President on September 25, 2003, and confirmed by the Senate on November 21, 2004. http://
thomas.loc.gov (click on "Presidential Nominations" hyperlink, then search "Superior Court," then
select "District of Columbia" as the State of the Nominee, then select "confirmed by Senate" as the
Legislative Action, then enter "1992-2004" as the dates). In fact, the Council for Court Excellence
conducted a study in which it reported that for twenty-nine completed judicial appointments under
the procedures provided by the Home Rule Act, the average time from the forwarding of nominations
to the President to the actual investiture of judges was eleven months. The range of time was
between five and twenty-nine months. See How the District of Columbia Gets Its Judges, A Council
for Court Excellence Educ. Guide (Dec. 2(05), available at http://www.courtexcellence.orglpublicationslbooklets.shtml.

68 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
the Senate Judiciary Committee, but instead are submitted for consideration to
the Senate Government Affairs Committee. In my opinion, some of the difficulty
lies in the Government Affairs Committee staff working outside of their traditional
responsibilities and the White House feeling no political obligation to assert
the needed pressure to ensure that the nominations move forward in a timely
manner. The candidates are basically on their own in their efforts to maneuver
the confirmation process. Efforts to obtain dates for confirmation hearings are
often left to "friends" of the candidates, and on some occasions, the leadership of
our local courtS. 16 Resolving this problem poses tremendous challenges. It is extremely
difficult to impart to a constituency that has minimal connection with the
interests of the city, the importance of having a full complement of judicial officers.
It addition, the problem of undue delay has another consequence, one that
affects the selection process itself because it effectively eliminates from the pool
of possible applicants, lawyers who are sole practitioners or members of small law
firms.
The Commission found that the uncertainty associated with potential lengthy
delays in Senate confirmation directly impacts those lawyers whose clients are
unwilling or unable to hire an attorney that may be precluded from completing
the work required. We have been told by these lawyers that clients will not hire
them if they think that they are going to be leaving in the middle of their cases.
However, because of the lengthy delay in the confirmation process, if one is fortunate
enough to be selected as a nominee, they are available for employment for
several months, and thus, during this period, possibly without the benefit of new
client business. So the "ugly" result is that the existing selection process tends to
favor lawyers from large firms or lawyers who work for the government, because
for them, the delay has no direct impact. It is understood that even when and if
they leave someone of equal experience will be available to manage the client's
legal needs. Therefore, you have segments or groups of lawyers who tend to fare
well in the existing process, while the process tends to discourage other groups of
lawyers from applying.
Hopefully, I have provided some "food for thought" and have highlighted
some aspects of the selection process that need a full and honest discussion because
they are of such great significance for us as a city.
16 This is not at all surprising given the sheer number of cases filed in the District of Columbia
Superior Court and the impact unfilled judicial vacancies have had on the number and timeliness of
case dispositions. For example, from 1996-2004, in most years, the number of filings in the Civil Division
exceeded 100,000, while yearly filings in the Criminal Division ranged from 69,325 to 46,276. See
1996-2004 D.C. Crs. ANN. REp.

EDITED PROCEEDINGS FROM THE SYMPOSIUM ON
DISTRICT OF COLUMBIA DEMOCRACY AND THE
THIRD BRANCH OF GOVERNMENT
***
Comments of
Daniel A. Rezneck*
I'm a very firm proponent of the maxim that if it ain't broke, don't fix it, and
this is a system that I think everyone can agree is not broken, and in my judgment,
doesn't need fixing. In response to one of the things that Mr. Schneebaum
said, I'd like to respond with a quotation from Justice Holmes, who said the life
of the law has not been logic, it has been experience. I'm going to talk from my
experience.
I practice extensively in the Superior Court, and I appear from time to time in
the D.C. Court of Appeals. These are both excellent courts. I think everyone can
agree on that. As Professor Worthy said, a number of the Superior Court Judges
have gone on to the Federal District Court. In my judgment, the D.C. Court of
Appeals is fully the equal of the U.S. Court of Appeals for the D.C. Circuit. I
hope there are no U.S. Court of Appeals Judges here, but I'm prepared to defend
that proposition on the basis of a good deal of experience in both.
I also was on the Judicial Tenure and Disabilities Commission for about ten
years. As you've heard, that's the Commission with the power to reappoint
judges. My recollection is that, during that whole time, there was only one judge
who came up whom we were prepared to pronounce unqualified, and, therefore,
precluded from reappointment. We didn't have to do that, because we passed the
word, and that judge voluntarily "retired," so that question never came up. But
we never turned down anybody during my tenure, that I can recall, for reappointment,
which I think, again, is a testament to the quality of the Court and the job
that the Nominations Commission did in putting these people forward. The present
system has really worked extremely well.
These are courts of the United States, also. This has been held repeatedly, and
it shouldn't even be open for argument any longer. These are courts of the
United States, the Superior Court, and the D.C. Court of Appeals. There are
important national interests which are adjudicated on a daily basis in those
courts, and to mention only a few, First Amendment questions, gun control, [and]
civil rights. These are issues that all come before the local courts just as much as
before the federal courts. I think it's entirely appropriate to have the President
and Congress involved in the selection process because they represent national
• Daniel A. Rezneck is currently the Senior Assistant Attorney General for the District of
Columbia.
'

70 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW
interests. The local interests are also represented through the nomination commission,
I think, in a very excellent way.
I'd like to close with a quotation. This is not 'a new issue, by the way. People
should not have to reinvent the wheel here. This issue's been kicking around
forever. I was on a committee of the Bar back in 1980 which studied this and
produced a report on it. One of the exhibits to our report, which I dredged up,
and I'd just like to quote to you, was a resolution of the Board of Judges of the
Superior Court in 1979; unanimous, as far as I know. It says,
This Board is compelled to comment on that proposal which would authorize
the Mayor of the District of Columbia to appoint the judges of the
District of Columbia Courts. An independent judiciary, that is, one capable
of reviewing the actions of the legislative and executive branches of government,
totally free from bias, fear, favor, or retaliation, is the sine qua non of
an effective judicial system.
The District of Columbia Government is the most constant litigant in the
Civil Division of our Court, and if the prosecution of criminal cases were to
be transferred to the District of Columbia, the overwhelming majority of
the litigation conducted in our court would involve the District of Columbia
as a party.
Legislation enacted by the City Council and executed by the District of
Columbia's Executive Branch is ruled upon by the judges of our Court on a
daily basis. The legal propriety of revenue provisions, housing codes, rental
acts, administrative procedures, school strikes, and the adequacy of mental
health, penal, and juvenile facilities, constitute a large part of the Court's
regular calendar.
In these matters and numerous others, the Executive and Legislative
Branches of the District of Columbia Government have a very direct interest.
In a truly effective judicial system, adjudication of these matters must
be accomplished by judicial officers who are independent of the coordinate
branches of government. This essential independence is seriously undermined
when those coordinate branches appoint and reappoint the judicial
officers who must rule on the propriety and legality of their various actions.
I can't improve on that, which is why I quoted it at length, and I'll close with
that. Thank you.

PRIDE, PREJUDICE, AND JAPAN'S UNIFIED STATE
Suzanne M. Sable*
Injustice anywhere is a threat to justice everywhere. 1
I. DELIMINATION OF THE PROBLEM
Japan is undoubtedly one of the foremost economic powers in the world and is
internationally recognized as a democratic leader among modern nations. The
economy's rapid growth in the mid-twentieth century has been attributed to its
booming technical industries, including its electronic and automobile industries.
However, Japan is unique in that it has retained traditions associated with typically
less advanced nations-namely, a regressive human rights agenda. Although
cultural, ethnic, and social minorities continue to exist on Japanese soil today,
Japan's social policy of Nihonjinron allows the majority of the population to disregard
such minorities and perpetuate the government's vision of a unified
nation. 2
The goal of this paper is to discuss the communities in Japan that are denied
rights guaranteed by international law, to identify the remedial provisions available
to such groups, as well as to make recommendations concerning how to affect
the speedy recognition and transformation of their rights in Japan. By analyzing
the cultural, ethnic, and social minorities of Japan, this paper centers Japan's
unique historical background and social atmosphere as a context for discussion
and as a platform for change. 3
• J.D. Candidate 2008, University of the District of Columbia David A. Clarke School of Law.
Suzanne Sable, Publications Editor, is especially grateful to her partner, Stacy Chaffin, the Editorial
Board of the District of Columbia Law Review, and Professor Roy Balleste for their assistance with
this Comment. The Author would also like to thank her father, Richard Sable, mother, Diana Sable,
as well as her friends and the faculty at the School of Law for their support.
1 Martin Luther King Jr., Letter from Birmingham Jail, in THE NORTON ANTHOLOGY OF AFRI­
CAN AMERICAN LITERATURE, 1854, 1854 (Henry Louis Gates Jr. & Nellie Y. McKayeds., 1997).
2 Japan stresses its uniqueness and homogeneousness in its "theory of the Japanese," or
Nihonjinron. See ANDREW GORDON, A MODERN HISTORY OF JAPAN FROM TOKUGAWA TIMES TO
THE PRESENT 300-01 (2003); see also Ichikawa, infra note 34. Nihonjinron is still prevalent today, and
is promulgated by the Japanese government. In 1986, Prime Minister Nakasone Yasuhiro publicly
declared that "Japan has one ethnicity (minzoku), one state (kokka), and one language (gengo)"
JOHN LIE, MULTIETHNIC JAPAN 1 (2001).
3 The framework adopted herein is applicable to a wide range of international, as well as national,
legal, and policy problems. The policy-oriented framework proposed by Harold Lasswell and
Myres McDougal intertwines social, historical, and legal analysis, and includes the following sections:
delimination of the problem, conflicting claims, past trends and decisions, future trends, and recommendations.
See generally HAROLD D. LASSWELL & MYRES S. McDOUGAL, JURISPRUDENCE FOR A
FREE SOCIETY: STUDIES IN LAW, SCIENCE AND POLICY (1992).

72 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
The paper begins by addressing the specific ethnic, cultural, and social groups
who are the subject of this paper-the burakumin,4 the Ainu,s the RyOkyuans,6
women, and the GLBT 7 community. The section entitled "Conflicting Claims"
more thoroughly identifies the problems at hand and illustrates the unique historical
and social context in which the discriminated groups emerged. The section
"Past Trends and Decisions" discusses the role of international human rights law
in addressing the human rights issues in Japan. This segment articulates the relevant
international treaties which Japan ratified and to which it should comply.
The section "Future Trends" analyzes the need for reformation of Japan's Constitution.
Finally, the section entitled "Recommendations" suggests how to better
protect the internationally-mandated rights of the discriminated groups. UN involvement
and international media attention are tangible and more easily achievable
objectives for the near future; however, the definitive goals of eliminating
discriminatory kanji 8 in Japanese laws, abolishing the koseki,9 and implementing
judicial review over all its branches of government are essential steps for protecting
international human rights norms in Japan.
D. CONFLlCI1NG CLAIMS
A. Burakumin
Most burakumin are descendants from a group of outcasts of the Tokugawa
period,lo the feudal period also known as the Edo period. ll The negative views
concerning the burakumin have grown from a stigma that was placed on individuals
who traditionally were employed in the "leather, meat, shoe, and bamboo
goods industries.,,12 Because the majority of the population observed Shinto and
4 See infra text accompanying notes 10-32.
5 See infra text accompanying notes 33-71.
6 [d.
7 GLBT refers to gay, lesbian, bisexual, and transgendered individuals.
8 Kanji are the Chinese characters adopted in Japan's writing system. See THE NEW NELSON:
JAPANESE-ENGLISH CHARACfER DlcrlONARY (4th ed., 2003).
9 The koseki is a public government record that contains:
demographic, economic, and genealogical information . . . for every citizen in every registered
household in Japan .... The modern [sic] koseki is one element of the administrative
system instituted by the Supreme Commander of Allied Powers (SCAP) at the end of World
War II, but Japan has sporadically maintained the koseki in some form since the seventh
century.
Laura H. Norton, Note, Neutering the Transgendered: Human Rights and Japan's Law No. 111, 7 GEO.
J. GENDER & L. 187, 191-92 (2006). See also, Koseki ho [Family Registry Law], Law No. 224 of Dec.
22, 1947 [hereinafter Koseki].
10 Emily A. Su-Ian Reber, Buraku Mondai in Japan: Historical and Modern Perspectives and
Directions for the Future, 12 HARV. HUM. RTS. J. 297, 299 (1999).
11 See ANDREW GORDON, A MODERN HISTORY OF JAPAN FROM TOKUGAWA TIMES TO THE
PRESENT 2 (2003).
12 Reber, supra note 10, at 300.

PRIDE, PREJUDICE, AND JAPAN'S UNIFIED STATE 73
Buddhist principles during the Tokugawa period, those that worked in occupations
related to "the filth and killing of animals" were shunned. 13 Moreover,
these workers were even banned from participating in or attending religious ceremonies
because of the stigma attached to them. 14
Today, the term burakumin is a derogatory label given to those people living
within buraku communities in Japan.lS Not all who are labeled burakumin, however,
are ancestrally linked to the past buraku society. The discriminatory label
also includes those who are associated with the group because of "kinship, place
of residence [or] occupation.,,16 The burakumin include about one to three percent
17 of the population, but "do not differ from other Japanese in terms of
ethnicity, language or race.,,18 Nevertheless, they "face prejudice and discrimination
in employment and marriage,,19 and are further subject to "inferior socioeconomic
conditions. ,,20
The Tokugawa regime 21 is remembered for its harsh laws restricting upward
social mobility as well as geographic movement. 22 Although this era is also
known as a time of peace and "social order,,,23 the class system delineated the
groups into four classifications: warriors, farmers, artisans, and merchants,24
which created deeply rooted discrimination against the marginalized groups in
society.
The Tokugawa reign ended in 1867, and by 1870, restrictions on "modes of
travel, dress, and hairstyle,,,25 as well as on occupation,26 were eliminated. Moreover,
in the new era, which would come to be known as the Meiji Restoration,2'
13 Id.
14 Stephen M. Salad, Discrimination from Sea to Shining Sea: Who Fares Better Under Their
Respective Country's Anti-Discrimination Laws: The Burakumin of Japan or Gays and Lesbians of the
United States?, 20 N.Y.L. SCH. J. INT'L & COMPo L. 527, 529 (2000).
15 See Reber, supra note 10, at 297; see also Salad, supra note 14, at 527.
16 Reber, supra note 10, at 297.
17 Salad, supra note 14.
18 Id.
19 Reber, supra note 10, at 299.
20 Id.
21 The Tokugawa period is named after the ruling family, hence the use of the word "regime" is
appropriate. See GORDON, supra note 11, at 1.
22 Id. at 9.
23 Id.
24 GORDON, supra note 11, at 16.
25 GORDON, supra note 11, at 65.
26 Id.
27 The Meiji Period, commonly referred to as the Meiji Restoration, was the period of time
between 1868 and 1912 in which the political and social structure of the country radically shifted.
Major events of this time included the taking over of the Tokugawa regime by a group of insurgents in
1867, as well as the "opening up of Japan" to foreign trade by Commodore Perry in 1854. See generally
GORDON, supra note II, at 61-114.

74 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
"hereditary outcast groups such as the eta and hinin,,28 were abolished, but these
labels were eventually replaced by the word burakumin, which literally translates
to "village people. ,,29 The Emancipation Edict of 1871 was supposed to mark the
"formal liberation of the Burakumin from their feudal status as outcasts and
'non-humans,' [h]owever ... this did little for the burakumin, and discrimination
against them increased. ,,30
Although discrimination continued, male burakumin formed self-help organizations
in the early 20th Century and attempted to improve their social status
through education and hard work?1 However, when these efforts failed, some
groups resorted to violence. 32
B. Ainu and the Ryukytlans
The Ainu and the Ryiikyiians are indigenous populations currently living in
Japan. 33 The ancestors of the Ainu came from a hunter-gatherer society-a people
who "made a living by fishing for salmon, hunting deer and bears, and gathering
plant roots. ,,34 The Ainu can still mostly be found living on Hokkaido, an
island in the northern region of Japan.35 The Ryiikyiians, on the other hand, are
"indigenous inhabitants of Okinawa,,,36 but arguments have been made that they
descended from the same ancestors as the Ainu. 37 What is clear is that "humans
have been constantly moving about East Asia . . . for millennia. ,,38
From the seventeenth to the nineteenth centuries, the Tokugawa regime was in
control of Japan. 39 As previously explained, the Tokugawa Period had a status
system based on the prior medieval systems of Japan,40 and there were numerous
28 Id. at 65.
29 Id.
30 Salad, supra note 14, at 529-30.
31 Id. at 154 (including organizations such as the Buraku Liberation League).
32 Id.
33 See Andrew Daisuke Stewart, Kayano v. Hokkaido Expropriation Committee Revisited: Recognition
of Ryukyuans as a Cultural Minority Under the International Covenant on Civil and Political
Rights, an Alternative Paradigm for Okinawan Demilitarization, 4 ASIAN-PACIFIC L. & POL'y J. 307,
308 (2003).
34 Morihiro Ichikawa, Understanding the Fishing Rights of the Ainu of Japan: Lessons Learned
from American Indian Law, the Japanese Constitution, and International Law, 12 COLO. J. INT'L
ENVTL. L. & POL'y 245,246 (2001).
35 Id. at 245; see also Reber, supra note 10 at 17 (discussing the fact that the Ainu lived on the
northern islands of Honshu and Ezo, which is the old name for present-day Hokkaido).
36 Stewart, supra note 33, at 308.
37 Id. at 321.
38 Mark A. Levin, Essential Commodities and Racial Injustice: Using Constitutional Protection
of Japan's Indigenous Ainu People to Inform Understandings of the United States and Japan, 33 N.Y.U.
J. INT'L L. & POL. 419, 420 (2001).
39 See generally MARJUS B. JANSEN, THE MAKING OF MODERN JAPAN 2-3 (2000).
40 Reber, supra note 10, at 302.

PRIDE, PREJUDICE, AND JAPAN'S UNIFIED STATE 75
laws set in place that restricted social and geographic mobility.41 A majority of
the Ainu were also forced into slavery.42 However, at this period in time, they
"maintain [ ed] their traditional customs, their own language, and their sovereignty.,,43
Nevertheless, since the 1870s, the Japanese government has denied the
Ainu fishing rights-the government even went so far as to make it illegal for
them to fish for salmon, a sacred fish used in traditional religious ceremonies. 44
Due to efforts by the government to nationalize its population during World
War II, the Ainu are rarely heard of outside of the country.45 During this time,
Japan's nationalist policy included a plan to homogenize the nation by erasing all
ethnic minority statuses. 46 Japan's expressed policy during the war was to create a
"unified state"-a state which would assimilate all of its peoples into one nation.
47 The policy was intended to suppress
historical bases for claims of Ainu indigenousness by subsuming the Ainu
identity into a "broader yet fundamentally unitary Japanese cultural complex."
Consequently, the argument "robs Ainu culture of both its autonomy
and its historicity, reducing Ainu cultural practices to the level of traditional
local customs that elsewhere throughout the country have somehow survived
into the modem age.,,48
Today, statistics show that the Ainu are underrepresented in the workforce
and overrepresented in the poverty pool.49 There are currently over 23,000 Ainu
living in Hokkaido; however, half of them live in rural areas such as Hikada and
Iburi, which are areas far less technologically advanced than the rest of Japan. 50
They hold fishing and construction jobs and are far less educated than the
Wajin 51 majority race. 52 Over thirty percent of the Ainu population characterized
themselves as needy. 53
Discrimination continues to affect the Ainu today because their ancestors can
be traced, and therefore identified, in the Japanese Family Register. The Japanese
Family Register, or koseki,54 is a registration system that documents statistics of
41 GORDON, supra note 11, at 9.
42 See Ichikawa, supra note 34, at 249.
43 Id.
44 Kayano v. Hokkaido Syuyouiinkai, 1598 Hanrei Jiho 33, 41 (Sapporo District Court, Mar. 27,
1997) [hereinafter Kayano).
45 See Ichikawa, supra note 34, at 282.
46 Id.
47 Id.
48 Levin, supra note 38, at 420 n.3 (citation omitted).
49 See Ichikawa, supra note 34, at 266-67 (citing economic and poverty statistics).
SOld.
51 See Levin, supra note 38, at 421 n.8.
52 See Ichikawa, supra note 34, at 266-67.
53 Id.
54 Koseki, supra note 9.

76 UNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEW
households, including genealogical information, economic background, and
demographics for each Japanese citizen living in the country.55 The koseki is public
and can be accessed by requesting a copy from the local government. 56 Therefore,
many individuals including employers, insurers, marriage prospects, and
spouses can use this system for a wide range of reasons, including personal, discriminatory
ones. 57
Both the Ainu and the Ryukyuans have been historically discriminated against
by the Wajin. 58 Although the Ryfikyuans are native inhabitants of Okinawa, they
are not characterized as an indigenous population,59 and Japan continues to dismiss
their culture and civilization. Since World War II, Japan has allowed the
United States to occupy their home island. 60
The Ryfikyuans should be considered an indigenous population. 61 Their
ethnicity, religion, and language differ from the Wajin, and furthermore, they are
ancestrally and inextricably linked to the Ainu. 62 Even physically, the Ryukyuans
are distinguishable from the Wajin-they are "characterized by shorter stature,
broader shoulders, darker skin, greater nasal breadth, wider eye opening, and less
prognathism. ,,63
The cultural dissimilarities between the Wajin and the Ryfikyuans are vast. 64
The marked difference between the two cultures in more recent times is
attributable to the fact that the Ryukyu Islands and Japan were impacted at
different times in history by Chinese culture. The greatest Chinese influence
on Japan came during the T'ang Dynasty (618-907 C.E.), characterized by
Buddhism, while the infusion of Chinese culture in the Ryukyus came about
several centuries later during the Ming Dynasty (1368-1622 C.E.), which
was by then dominated by Confucian thought. Furthermore, Japan's contact
55 Norton, supra note 9, at 191-92; see also GORDON, supra note 11, at 262 (describing that the
burakumin were also discriminated against because their village or neighborhood was identified in the
koseki).
56 See, e.g., Charlotte M. Meyer, TIps for Obtaining a Copy of Your Japanese Family Registry,
http://www.rootsweb.coml-jpnwgw/Kosekihow.html(last visited on April 16,2007).
57 See Norton, supra note 9, at 192.
58 In Kayano et. AI. v. Hokkaido Expropriation Committee, the Sapporo District Court recognized
the Ainu as a distinct indigenous population deserving of rights and cultural protections. Andrew
Daisuke Stewart argues that the Ryukyu population deserves the same indigenous status based
on the court's reasoning in that case. Kayano, supra note 44; see also Stewart, supra note 33, at 311;
see also Levin, supra note 38.
59 See generally Stewart, supra note 33, at 309.
60 [d.
61 [d.
62 [d.
63 WILLIAM P. LEBRA, OKINAWAN RELIGION: BELIEF, RITUAL, AND SOCIAL STRUcrURE 7
(1996).
64 See generally Stewart, supra note 33.

PRIDE, PREJUDICE, AND JAPAN'S UNIFIED STATE
77
with China was filtered through Korea and came from northern China,
while the Ryllkyllans were influenced by southern China. 65
Over the centuries, demographic differences allowed for the development of very
distinct experiences, and, therefore, markedly different cultures, religions, and
societies. 66
The Japanese government has been continuously hostile towards the Ryllkyllans
and has taken numerous measures to make them assimilate to the dominant
Wajin culture. In 1879, the RyOkyll Kingdom was forcibly appropriated and
renamed Okinawa by the government. 67 After World War II, RyOkyOan students
were punished for speaking their own language and forced to wear "dialect
tags. ,,68 Even today, students are discouraged from speaking their native Ryllkyllan
language. 69 The Shimin Gaikou Centre, a local non-governmental organization
in Japan, submitted a written statement to the United Nations Committee
on Economic, Social and Cultural Rights, which highlights the aforementioned
human rights abuses that violated principles of international law. According to
the report, these violations were contrary to the 1907 Hague Warfare Regulations
and the International Covenant on Economic, Social and Cultural Rights?O Labeling
the RyllkyOans' conditions as forced assimilation, the report further asserted
that the community was subject to colonial rule.71
C. Women
Although Japan has hastily joined the heavily democratic modern world order,
it has been slow to accept equal rights for women.72 Japan's policy towards gender
equality is anything but aggressive-it follows a principle of gradualism and
"reflects a widespread belief that meaningful change must be shaped by evolution,
rather than revolution. ,,73
65 Stewart, supra note 33, at 323.
66 The Ryukyuan follow a religion not found anywhere but Okanawa. See Stewart, supra note
33, at 323.
67 See U.N. High Comm'r for H. R., Sub-Comm. on Economic, Social and Cultural Rights,
NGO Report on Okinawa, U.N. Doc. E/C. 12/20011NG0/3 (Oct. 7,2001) (prepared by Shimin Gaikou
Centre) [hereinafter NGO Report].
68 [d.
69 [d.
70 [d.
71 [d.
72 See generally Kiyoko Kamio Knapp, Don't Awaken the Sleeping Child: Japan's Gender
Equality Law and the Rhetoric of Gradualism, 8 COLUM. J. GENDER & L. 143 (1999).
73 [d. at 145-56.

78 UNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEW
During World War II, the Japanese government forced over 200,000 74 women
from Japan, Korea, China, the Philippines, Guam, Taiwan, Malaysia, Indonesia,
and the Netherlands to become sex slaves of Japanese soldiers.?5 These jugun
ianfu, or comfort women,16 were repeatedly raped by the Japanese soldiers,
sometimes even up to thirty times a day.77
This systematic abuse was later justified by the Japanese government as a way
to prevent "the Japanese army from raping civilian women;,,78 however, the comfort
system was in reality a military strategy to exploit the "inferior" races. 79 It is
estimated that over eighty percent of the comfort women were from Korea. 8o
After the Japanese government annexed its Asian neighbor, it systematically victimized
hundreds of thousands of the women by forcing them into sexual slavery.81
The Japanese government not only believed that their race was superior,
but they used this system to sustain a belief that the Korean comfort women
would "bear Japanese children 'who would grow up to be loyal subjects of the
emperor.",82 These human rights atrocities provide solid evidence that Japan disfavors
both racial minorities and women.
To this day, Japan has not formally apologized or made reparations for abusing
these women during World War II, nor has any court held Japan responsible for
the atrocities. 83 On January 31, 2007, Congressman Michael M. Honda, a Japanese
American, introduced legislation in the House to urge Tokyo to "formally
acknowledge, apologize, and accept historical responsibility,,84 for the mistreat-
74 Brooke Say, Ripe for Justice: A New UN Tool to Strengthen the Position of the "Comfort
Women" and to Corner Japan into its Reparation Responsibility, 23 PENN. ST. INT'L L. REV. 931,932
(2005).
75 Shellie K. Park, Broken Silence: Redressing the Mass Rape and Sexual Enslavement of Asian
Women by the Japanese Government in an Appropriate Forum, 3 ASIAN-PACIFIC L. & POL'y J. 2, 2-4
(2002).
76 See GEORGE HICKS, THE COMFORT WOMEN: JAPAN'S BRUTAL REGIME OF ENFORCED PROS­
TITUTION IN THE SECOND WORLD WAR 263 (1994).
77 Park, supra note 75, at 2-4.
78 Say, supra note 74, at 932; see also Park, supra note 75, at 4-6 (writing that the Japanese
government justified their creation of the comfort women system by arguing that such a system was
essential to: "1) prevent soldiers from uncontrollably raping local women; 2) preserve the strength of
its troops by controlling the spread of venereal disease; 3) increase the fighting strength of the Japanese
soldiers; 4) raise morale and provide leisure and recreation for soldiers as a reward for fulfilling
patriotic duties; 5) protect national security from espionage; and 6) raise revenue from taxing the
comfort stations") [d.
79 See Park, supra note 75, at 2-4 (noting Japan's perception of superiority during World War
II).
80 [d. at 2-4.
81 [d.
82 /d. (internal citation omitted).
83 Say, supra note 74, at 934.
84 H.R. 121, 1l0th Congo (2007).

PRIDE, PREJUDICE, AND JAPAN'S UNIFIED STATE 79
ment and exploitation of the comfort women. 8S However, this legislation is still
currently in two House Foreign Affairs Committees. 86 Ryozo Kato, Japan's ambassador
to the United States, referred to the bill as "unfounded" and stated that
U.S.-Japan relations might be "adversely affected. ,,87
Women in modern Japan continue to struggle today for gender equality.88 Although
the Equal Employment Opportunity Law ["EEOL"] was passed in
1985,89 many women still find themselves unable to move beyond "the traditional
role of women in the workplace"-as "office flowers,,90 holding temporary clerical
and administrative positions. 91 The EEOL has failed to remedy this situation.
The law offers more tautology than it does bite-the EEOL "merely recommend[s]
that employers give women equal treatment.,,92
D. GLBT Community
The GLBT community still faces world-wide intolerance. Today, Japan actively
participates in this international intolerance, but during the Tokugawa period,
male homosexuality was celebrated. 93 Historical records of male
homosexuality, referred to as nanshoku,94 appeared in the late tenth century;
however, accounts date back as far as the sixth century.9S
Nanshoku was thought of as a tendency or sexual desire that men could not
resist. 96 It was extremely common during the Tokugawa period and was "formally
organized in such institutions as samurai mansions, Buddhist monasteries,
and male brothels linked to the kabuki theater.,,97 Principles of Japanese Shintoism
also perpetuated nanshoku-its doctrine dealt with proprietary rights and
ceremonies, whereas sex was believed to be a "natural phenomenon to be enjoyed
with few inhibitions. ,,98
85 Josh Rogin, Lawmakers Meet With Japan's Prime Minister on 'Comfort Women' Issue, CO
TODAY, Apr. 26, 2007, available at http://public.cq.comJdocs/cqtlnewsllO-OOOOO2499156.html.
86 See H.R. 121, supra note 84.
87 Rogin, supra note 85.
88 Knapp, supra note 72, at 144.
89 Id.
90 Shokuba no hana translates to "office flower" and is the "phrase often used for female workers
... fresh out of school [who] perform supplementary duties and help create a pleasant atmosphere
in the office" Knapp, supra note 72, at 144.
91 Knapp, supra note 72, at 144.
92 Id. at 144-45.
93 GARY LEUPP, MALE COLORS: THE CONSTRUCfION OF HOMOSEXUALITY IN TOKUGAWA JA.
PAN 1 (1997).
94 Jd.
95 Jd. at 11.
96 Nanshoku literally stands for "male eros." Id.
97 Jd.
98 LOUIS CROMPTON, HOMOSEXUALITY & CIVILIZATION 413 (2003).

80 UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEW
Although nanshoku was more than tolerated in Japanese history, female sexuality
was treated quite differently in both the public and private spheres. Buddhism,
Confucianism, and early written texts "clearly defined gender roles in
ways highly unfavorable to women" during this time. 99 According to Confucian
principles,
[ a] man . . . is yang and noble, a woman is yin and base, just as heaven is
yang and noble, and earth is yin and low .... Immoral by nature, women
must be bound by the "three subordinations" (sanju): to parents while single,
husbands while married, and eldest sons if widowed. loo
Therefore, it is understood why female homosexuality is not a subject spoken of
in history books-even female heterosexuality was demeaned and highly
proscribed.
Likewise, a law recently passed in Japan imposes "severe restrictions on
[transsexuals'] fundamental rights of reproduction and bodily integrity.,,101 Although
the first openly transgendered politician 102 was recently elected to the
Setagaya Ward Assembly in Tokyo, Japan,103 the Law Concerning Special Cases
in Handling Gender for People with Gender Identity Disorder ["Law No.
111"]104 was a watered down version of what the transgendered politician initially
attempted to pass. lOS Law No. 111, as passed, allows transgendered individuals to
petition to legally change their genders on the koseki;106 however, this advantage
would only be available to those persons who had never reproduced and do not
intend to reproduce in the future. 107
m. PAST TRENDS AND DECISIONS
Japan is a signatory to the following pertinent international human rights treaties:
The International Covenant on Economic, Social and Cultural Rights
("ICESCR,,);108 the International Covenant on Civil and Political Rights
99 Id. at 183.
100 Id.
101 Norton, supra note 9, at 190.
102 Aya Kamikawa, a male-to-female transsexual, was successful in opting to omit her gender
on her application for candidacy. See Norton, supra note 9, at 188.
103 Id.
104 Sei doitsusei shogaisha no seibetsu no toriatsukai no tokurei ni kansuru horitsu, Law No. 111
of July 16, 2003; see also Norton, supra note 9, at 189.
105 Norton, supra note 9, at 190. It should be noted that the watered down version of Law No.
111 was unanimously passed by both Houses in the Diet. Id. at 189.
106 lei. at 189.
107 Id. at 189-90.
108 U.N. High Comm'r for H.R., Status of Ratifications of the Principal International Human
Rights Treaties (June 09, 2004), available at http://www.unhchr.chlpdflreport.pdf. The ICESCR was
ratified on September 21, 1979. Id.

PRIDE, PREJUDICE, AND JAPAN'S UNIFIED STATE 81
("ICCPR,,);109 the International Convention on the Elimination of All Forms of
Racial Discrimination ("ICERD,,);110 and the Convention on the Elimination of
All Forms of Discrimination against Women ("CEDAW,,).111
The ICESCR is an international treaty which promotes human rights including,
but not limited to, the right to self determination, the right to work, the right
to receive fair wages for work, the right to an adequate standard of living, the
right to be educated, and the right not to be discriminated against, including on
the basis of sex. 112 Particularly, the ICESCR promotes gender equality in the
workplace by prohibiting "inferior working conditions for women when compared
to men,113 as well as requiring an "[ e ]qual opportunity for everyone to be
promoted in his employment to an appropriate higher level, subject to no considerations
other than those of seniority and competence.,,114
The ICCPR protects the civil and political rights of the citizens in the countries
which have ratified it. 115 These rights include, but are not limited to, the right to a
judicial remedy if the rights contained in the treaty are violated, the right not to
be tortured, the right not to be a slave, and the right to liberty.116 Additionally, it
specifically prohibits discrimination based on "race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other
status. ,,117
The ICERD was ratified by Japan on January 14, 1996 and is a treaty abolishing
discrimination based on race. 118 It expressly admonishes slavery and
apartheid and specifically refers to the horror of "manifestations of racial discrimination
still in evidence in some areas of the world ... [including] governmental
policies based on racial superiority or hatred. ,,119
109 [d. The ICCPR was ratified on September 21, 1979. [d.
110 [d. Accession of the ICERD occurred on January 14, 1996. [d.
111 [d. CEDAW was ratified on July 25, 1985. [d.
112 ICESCR, entered into force Jan. 3 1976.
113 ICESCR, art. 7, para. 1.
114 ICESCR, art. 7, para. 3.
115 ICCPR, entered into force Mar. 23, 1976. It should also be noted that Japan has not ratified
the First and Second Optional Protocols of the ICCPR which create a system for individualized
human rights claims and abolish the death penalty. Hamano, infra note 122 at 467 n.247.
116 ICCPR, entered into force Mar. 23, 1976.
117 ICCPR, art. 2, para.!.
118 ICERD, entered into force January 4, 1969. The ICERD defines racial discrimination as
any distinction, exclusion, restriction or preference based on race, colour, descent, or national
or ethnic origin which has the purpose or effect of nullifying or impairing the recognition,
enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the
political, economic, social, cultural or any other field of public life.
ICERD, art. 1, para.!.
119 ICERD, pmbl.

82 UNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEW
The CEDAW treaty prohibits discrimination against women in any form. 12o
The countries who ratify it agree that they will incorporate gender equality principles
in their legal system, abolish all discriminatory laws, and put new ones in
place that prohibit discrimination against women, establish tribunals to ensure
the successful protection of women who are discriminated against, and guarantee
removal of all other acts of discrimination against women. 121
All four of the aforementioned treaties were ratified in Japan, meaning that
they have the force of law under Article 98(2) of the Kenp6 Constitution. 122
Therefore, the ICESCR, ICCPR, ICERD, and CEDAW are all legally binding
because they are incorporated into domestic Japanese law. 123 Furthermore, each
treaty has a supervisory committee which oversees the country's progress. These
committees include the Committee on Economic, Social and Cultural Rights,124
the Human Rights Committee,125 which monitors the ICCPR, the Committee on
the Elimination of Racial Discrimination,126 and the CEDAW Committee. 127 Reports
are compiled by the Japanese government and submitted to the committee
periodically.128 They contain information relating to the various legislative, judicial,
and administrative measures countries have adopted to give effect to the
provisions of the Convention. 129
120 CEDAW, entered into force Dec. 18, 1979. The CEDAW defines discrimination against women
as
any distinction, exclusion or restriction made on the basis of sex which has the effect or
purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective
of their marital status, on a basis of equality of men and women, of human rights and
fundamental freedoms in the political, economic, social, cultural, civil or any other field.
CEDAW, art. 1.
121 CEDAW, entered into force Dec. 18, 1979; see also U.N. Dep't of Econ. and Soc. Affairs,
Div. for the Advancement of Women, Text of the Convention on the Elimination of All Forms of
Discrimination against Women, available at hUp:llwww.un.orglwomenwatchldaw/cedaw/cedaw.htm.
122 Sylvia Brown Hamano, Incomplete Revolutions and Not So Alien Transplants: The Japanese
Constitution and Human Rights, 1 U. PA. J. CONST. L. 415,468 (1999). Article 98(2) of the Kenpo
Constitution states in pertinent part, "[t]he treaties concluded by Japan and established laws of nations
shall be faithfully observed" KEN PO, art 98, para. 2.
123 See Hamano, supra note 122, at 468 (stating that the Japanese government, courts and
scholars agree that these are binding treaties because Japan ratified them).
124 ICESCR, art. 16, para. 2.
125 ICCPR, art. 28, para. 1.
126 ICERD, art. 8, para. 1.
127 CEDAW, art. 17, para. 1.
128 Under the CEDAW, countries are required to submit reports every four years. See U.N.
Dep't of Econ. and Soc. Affairs, Div. for the Advancement of Women, Convention on the Elimination
of All Forms of Discrimination Against Women Country Reports, available at http://www.un.orgl
womenwatchldawl cedaw/reports.htm.
129 Id.

PRIDE, PREJUDICE, AND JAPAN'S UNIFIED STATE 83
IV. FUTURE TRENDS
There is strong public and legislative support in Japan for reformation of the
1964 Kenp6 Constitution. 13o The Liberal Democratic Party of Japan ("LOP") released
a draft proposal to reform the Constitution on November 22, 2005,131 and
currently "stands the best chance yet of actually becoming a constitutional
amendment." 132
The LOP's draft revision includes a significant and controversial change-the
removal of the language in Article 9 which forbids Japan to engage in war.133 To
the West and Japan's Eastern neighbors, this removal would also eliminate Japan's
policy of pacifism which was an imposed "effective apology" after World
War 11.134
The Kenp6 Constitution has never been amended, making constitutional reform
not only logical, but necessary.135
The absence of amendment may be seen as proof of the Constitution's stability
and the satisfaction of the Japanese people with their fundamental
law. On closer examination, however, the failure to amend the text by the
legally mandated procedures while simultaneously permitting government
actions and practices that violate the Constitution may be a sign of decay,
rather than strength, indicating the absence of rule of law.136
Japan's Supreme Court has the power of judicial review, but refuses to enforce
it and instead gives extreme deference to the legislature. 137 Modern Japan has
not been able to acquiesce to the new Kenp6 Constitution's mandate for judicial
review; however, it has continued to follow the policy of the Meiji period, "where
laws dictated the content of the Constitution.,,138 Therefore, constitutional reform
is becoming increasingly important in Japan as the significance of the document
is weakening. 139
130 Canon Pence, Reform in the Rising Sun: Koizumi's Bid to Revise Japan's Pacifist Constitution,
32 N.C.J. INT'L L. & COM. REO. 335, 377 (2006) (stating that "80 percent of at least one house of
the Diet and 56 percent of the Japanese public" approve constitutional reform). [d.
131 [d. at 335.
132 [d. at 377.
133 [d. at 336.
134 [d.
135 Hamano, supra note 122, at 417.
136 [d.
137 [d. at 369 (stating that "despite having the 'power to determine the constitutionality of any
law, order, regulation, or official act,' the courts have thus far refused to rule against the SDF. The
likelihood that a Japanese high court would find the SDF unconstitutional is very low, given that' the
Japanese Supreme Court has pursued a policy of extreme deference to the legislature in exercising
judicial review' "). [d.
138 Hamano, supra note 122, at 443.
139 [d. at 484.

84 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
v. RECOMMENDATIONS
A. Restriction of Access to the Koseki or Particular Koseki Information
Although the koseki is maintained for reasons such as taxation and identification,140
the koseki records are regularly accessed by potential employers, insurers,
marriage prospects, and spouses, which makes them an easy tool for
discrimination. 141 Access to koseki records should be more restricted. 142 These
restrictions might include limitations on who can access the information, on what
information someone might access, or a combination thereof.
Because the goal of restricting access would be to eliminate personal discriminatory
use of the koseki, a blanket limitation on public access is the most preferred
preliminary action Japan could take. Although the possibility of
discrimination by government employees and officials would remain, Japan might
also consider eliminating the type of information workers can access to remedy
this problem. These limitations on who can access, what they can access, and how
they access make the koseki less likely to be used as a tool for discrimination.
B. Elimination of the Use of Discriminatory Kanji in Japan's Laws
"Language is the system through which we are all socialized." Born into language,
we must adopt its functioning system in order to produce meaning,
communicate with others, and shape our perceptual universe. It follows then
that "nothing exists concretely in human thought . .. until it exists as a word,
name gone general, a conventionalized set of sounds, oral or otherwise recorded."
Problems arise, however, when the power of naming lies in the
hands of only one part of the population. When language encompasses mere
fragments of a culture's reality, it becomes difficult, if not impossible, for
those who are excluded from the language to articulate their own reality. For
those individuals who are denied the power of naming their own reality,
doubt arises as to the validity of their observations, experiences, and perceptions.
They themselves are likely to dismiss their own reality, because few
people are conscious that what they think and say is circumscribed by the
words and symbols at their disposal. Thus, the power of naming is difficult to
perceive, name, and resist. 143
140 Norton, supra note 9, at 192.
141 ld. at 192-93 (describing how minorities have long held that the koseki is used as a tool of
discrimination since its creation by Emperor Meiji in the late nineteenth century).
142 [d. at 212 (arguing that regulation of the koseki is needed to prevent discriminatory practices
continue).
143 Omi Morgenstern Leissner, The Problem That Has No Name, 4 CARDOZO WOMEN'S LJ.
321, 323 (1998) (internal citations omitted).

PRIDE, PREJUDICE, AND JAPAN'S UNIFIED STATE 85
Eliminating gender disparity will be a laudable, but daunting achievement.
Gender equality is the third United Nations Millennium Development Goal 144
and has been targeted as an integral element for eliminating world-wide poverty
within the twenty-first century.14S Promoting gender equality seeks to "enhance
the status of women in society,,,146 and the UN has been a crucial player in promoting
this issue.
UN member states' collective commitment to the rights of women was reinforced
at the Fourth World Conference on Women in Beijing in 1995,
twenty years after the issue was officially flagged for the international
agenda at a first global conference on women in Mexico City. The UN
Commission on Human Rights ... has been another important forum for
promoting women's rights. A focal point of the 2003 Commission proceedings
was an open debate on the "integration of the human rights of women
and a gender perspective.,,147
Both the laws and the Japanese writing system reflect the country's deeply
rooted gender schemas. Language itself, let alone in law, is a fundamental part of
our existence which can affect our perception of reality and way of life. Therefore,
modification of the language in Japanese law will most likely support shifting
Japan's gender schemas to a more gender-inclusive position.
The Japanese language consists of three very different sets of characters-hiragana,
katakana, and kanji. 148 Hiragana and katakana are both syllabaries, which
are the basic set of Japanese characters, each of which represent distinct syllables.
149 The hiragana characters are equivalent to a cursive form of writing, and
katakana are the squared form. Katakana are also mainly used to write foreign
names and words. ISO Kanji, or "Han characters," on the other hand, are the more
complex symbols that derived from China. lSI
"Woman" in Japanese is pronounced on'na. 1S2 Historically, the kanji for on'na
represents a pregnant woman sitting on a chair: 1S3
144 See THOMAS O. WEISS ET AL., THE UNITED NATIONS AND CHANGING WORLD POLITICS 291
(4th ed. 2004).
145 [d. at 290.
146 [d. at 295.
147 [d. at 295-96 (internal citation omitted).
148 See generally THE NEW NELSON: JAPANESE-ENGLISH CHARACTER DICTIONARY (2003)
[hereinafter NELSON] (referencing the kanji system of writing and both kana sets).
149 A syllabary is "a set of written symbols, each of which represents a syllable, used to write a
given language." DICTIONARY.COM UNABRIDGED (v.1.1), available at http://dictionary.reference.com!
browse/syllabary (last visited April 27, 2007).
150 [d. at 1247.
151 Kanji, http://en.wikipedia.orglwikilKanji (last visited April 21, 2007).
152 NELSON, supra note 148, at 298.
153 As kanji derived from the earlier dynasties in China, there is speculation as to what the
kanji represent. However, there is a general agreement that the character for on'na represents a

86 UNIVERSITY OF THE DISTRICT OF CoLUMBIA LAW REVIEW
It is readily apparent that there is inherent discrimination within the Japanese
language when on'na is compared with otoko, the Japanese word for "man.,,155
The character which represents otoko has two distinct characters within it-ta,
which stands for "rice field,,,156 and chikara, which represents "strength.,,157
~I
~158
Together, both of the characters combine to symbolize "man," or the "power in
the field.,,159 Considering that both on'na and otoko derived from China over
2,000 years ago, it is no wonder that gender discrimination is an ingrained reality
of every day life for the Japanese. 160
A creative approach to eliminating the gender disparity would be to replace
the kanji for on 'na and otoko with the word hito in Japanese laws. The kanji for
hitosymbolizes the word "person" or "human being.,,161
The character for hito is a gender-neutral symbol, and, therefore, an effective
means for eliminating inherent gender discrimination within Japanese society and
law. 163 This symbol, unlike the ones representing on'na or otoko, is not descrippregnant
woman sitting on a chair. See Kanji: Level, http://www.thejapanesepage.comlkanji/kanji.
php?kanjUd=17 (last visited April 21, 2(07).
154 NELSON, supra note 148, at 298.
155 Id. at 745.
156 Id. at 743.
157 Id. at 161.
158 Id. at 745.
159 Japan was an agricultural society before the Meiji Restoration and the "power in the field"
was the man. See GORDON, supra note 11, at 2.
160 NELSON, supra note 148, at 1251 (2003) (referencing both the Western and Eastern Han
Dynasties, which lasted approximately from 206 B.C.E. to 220 A.D.).
161 Id. at 56. The fact that the symbol translates to both "person" and "human being" is truly
significant, as it should be universally applied to include all humans, including ethnic, cultural, and
social minorities.
162 Id.
163 See generally Leissner, supra note 143.

PRIDE, PREJUDICE, AND JAPAN'S UNIFIED STATE 87
tive-it does not immediately convey to one seeing it the thought of either masculinity
or femininity. By replacing the old, discriminatory kanji with the
character for hilO, a very identifiable symbol,l64 in Japanese law, the language
would become more gender-inclusive and less discriminatory. Gender discrimination
is particularly important to eliminate within the language of Japanese law
because it serves to perpetuate that disparity.
One area in which naming and the power to name are particularly important
is law. [B]oth law and naming are intimately related to social control
and the distribution of power in society .... It follows that if language itself
is not neutral, neither is law .... Thus, law not only reflects existing discrepancies
in power as manifested in language, it also works to perpetuate these
injustices. 165
The push for more gender-neutral language in law can be noted in the prevalent
use of the reasonable person standard over the reasonable man standard. l66 Historically,
the standard determining legally adequate provocation in criminal law
used to be judged by the reasonable man standard. 167 However, this changed in
the late nineteenth century after critics argued the standard favored male defendants
over female defendants. 168 A similar change towards gender-neutral language
in Japan's jurisprudence is not only strongly desired, but a necessary a step
in furthering the ultimate goal of gender equality.
C. Reformation of the 1946 Kenpo Constitution
As discussions take place regarding the reformation of Article 9 in the 1946
Kenp6 Constitution, the human rights provisions of the Constitution should also
164 Hito is an easily identifiable kanji for literate Japanese people, as well as students studying
Japanese. It is one of the kanji included in the first set of the joyo kanji taught to students in the first
grade or comparable beginner's course. See NELSON, supra note 148, at 1269.
165 Leissner, supra note 143, at 326-27.
166 Leslie Bender, An Overview of Feminist Torts Scholarship, 78 CORNELL L. REV. 575, 579
(1993); see also Leslie M. Kerns, A Feminist Perspective: Why Feminists Should Give the Reasonable
Woman Standard Another Chance 10 COLUM. J. GENDER & L. 195 (2001) (noting the use of the
reasonable person standard, but favoring the reasonable woman standard in sexual harassment
jurisprudence ).
167 CYNTHIA LEE, MURDER AND THE REASONABLE MAN: PASSION AND FEAR IN THE CRIMI­
NAL COURTROOM 25 (2003).
168 [d.

88 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
be addressed. 169 The following clauses have been interpreted by the Supreme
Court of Japan as limitations on human rights: 17o
Artjcle 12
The freedoms and rights guaranteed to the people by this Constitution shall
be maintained by the constant endeavor of the people, who shall refrain
from any abuse of these freedoms and rights and shall always be responsible
for utilizing them for the public welfare. 171
Artjcle 13
All of the people shall be respected as individuals. Their right to life, liberty,
and the pursuit of happiness shall, to the extent that it does not interfere
with the public welfare, be the supreme consideration in legislation and in
other governmental affairs. 172
Article 14
All of the people are equal under the law and there shall be no discrimination
in political, economic or social relations because of race, creed, sex,
social status or family origin. 2) Peers and peerage shall not be recognized.
3) No privilege shall accompany any award of honor, decoration or any distinction,
nor shall any such award be valid beyond the lifetime of the individual
who now holds or hereafter may receive it. 173
Although Article 13 and 14 address the "public welfare," the Supreme Court of
Japan has not taken up the task of delineating the parameters of the limitations.
Instead, the Court has ignored Article 98 174 of the Kenp6 Constitution, which
granted the power of judicial review to the Supreme Court and its inferior
courts. 175 For instance, when the word kokumin in Article 14 was defined "by
169 In May of 2007, Prime Minister Shinzo Abe approved a bill which will make possible a
national referendum to revise Article 9 of the Meiji Constitution, which allow the repeal of the country's
war prohibition. The referendum could take place as early as 2010. See Edward Gomez, Has the
time come for Japan to remilitarize?, May 16,2007, available at http://www.sfgate.comlcgi-binlblogs/
sfgate/detail?blogid=15&entry_id16633 (last visited May 18, 2007).
170 Hamano, supra note 122, at 433.
171 KENPO, art 12, para. 1.
172 KENPO, art 13, para. 1.
173 KENPO, art 14, para. 1.
174 Article 98 of the Kenp6 Constitution states, "[tJhis Constitution shall be the supreme law of
the nation and no law, ordinance, imperial rescript or other act of government, or part thereof, contrary
to the provisions hereof, shall have legal force or validity. 2) The treaties concluded by Japan
and established laws of nations shall be faithfully observed." KENPO, art 98, para. 1.
175 See Hamano, supra note 122, at 459-60.

PRIDE, PREJUDICE, AND JAPAN'S UNIFIED STATE 89
statute to mean person with Japanese citizenship,,,176 judicial review of this action
would have brought forth debate as to whether the definition of kokumin
included rights and protections for aliens, including long-term resident aliens. I77
However, the limited definition still stands. 178
Therefore, if broader human rights provisions are added into draft revisions of
amendments to the Kenp6 Constitution, the power of judicial review will still
need to be exercised by the Court to make them enforceable. Although the Meiji
Constitution did not provide for judicial review of governmental actions,179 the
exercise of this power is a necessary step to protect ethnic, cultural, and social
minorities in Japan. Furthermore, the enforcement of the rule of law is essential
to maintain the credibility of the law. 180 Consequently, reformation of the Kenp6
Constitution is crucial.
VI. CONCLUSION
Presently, there are cultural, ethnic, and social minorities on Japanese soil receiving
fewer internationally recognized rights and privileges than the majority of
the population. Communities and peoples such as the burakumin, the Ainu, the
Ryl1kyl1ans, women, and the GLBT community have been left behind as the technologically-advanced
modern nation-state moves forward into the twenty-first
century. The human rights abuses in Japan will need more than mere public attention
to remedy them. Restriction on koseki access, implementation of genderneutral
language in Japanese law, and reformation of the 1946 Kenp6 Constitution
are tangible steps toward a more progressive and truly democratic society.
Since 1947, the [Supreme] Court has only found laws to be unconstitutional six times ... Two
of the six rulings dealt with the regulation of economic rights ... Such a small body of decisions
with virtually no impact on Japanese society has led some Japanese scholars to conclude
that the Supreme Court is unwilling to impose the rule of law on governmental power.
[d.
176 [d. at 437.
177 [d.
178 [d. at 437-38 (stating "[t]he present Constitution provides in pertinent part ... [a]ll of the
people [kokumin] are equal"). [d.
179 Hamano, supra note 122, at 442.
180 [d. at 417 (arguing that Japan's failure to amend the Kenp6 Constitution is a sign of deterioration
of the rule of law in Japan).