PREPARED STATEMENT OF A. LEON HIGGINBOTHAM, JR., COMMISSIONER, U.S. CIVIL RIGHTS COMMISSION Mr. Chairman and Members of the Subcommittee, I have been recently appointed as a Commissioner of the United States Commission on Civil Rights ("the Commission”). I am presently the Public Service Professor of Jurisprudence at Harvard University, and Of Counsel to Paul, Weiss, Rifkind, Wharton, & Garrison in their New York and Washington offices. I was formerly a Commissioner of the Pennsylvania Human Rights Commission, and a Commissioner of the Federal Trade Commission. For thirteen years, I was a judge on the United States district court, and for sixteen years, I was a judge on the United States Court of Appeals for the Third Circuit, part of which time I served as Chief Judge. Several months ago, Richard Gardner, the United States Ambassador to Spain, requested Justice Ruth Bader Ginsburg and me to deliver lectures to the Madrid Bar Association on Tuesday, July 23, 1996, in celebration of their 400 anniversary. When I was advised of your hearing, it was too late to cancel my commitment in Madrid to give a lecture that many lawyers, governmental and judicial authorities, and others have agreed to attend. I am presenting this statement to you today in my capacity as a Commissioner of the Civil I want to extend a special note of gratitude to the Chairman and Members of the Senate Judiciary Committee for inviting me to present these views. I regret deeply that I am not able to appear personally before this distinguished Committee, and I am appreciative of your willingness to accept my written statement in lieu of my formal appearance. I offer these views with the hope that they will be useful to the Committee in its deliberations over this important matter. L No evidence or record of any fundamental flaw in the current use of subpoena authority. I must emphasize at the onset that I find no fundamental flaw in the current use of subpoena authority by the Commission. I hope to put to rest any misplaced concerns or fears there may be about the manner in which this authority has been used historically and presently. Put simply, there exists no legal or logical basis for this Congress to give serious consideration to any proposal that would replace the subpoena authority of the Commission with an untested alternative or a novel restriction. As a Commissioner, however, I am not unmindful that certain proposals have been recommended which purport to address the potential for abuse of this essential authority. On that point, I am compelled to express my unequivocal opposition to the "Civil Rights Commission Amendments Act of 1996 (HR 3009)," which proposes to severely restrict the subpoena powers of the Commission. This Draconian measure, if enacted, would significantly decrease the likelihood that the Commission could fulfill its historic mission. For the reasons set forth in this statement, I urge the Senate to reject this legislation should it come before this body for consideration, and to reject any other legislative proposal that would similarly undermine the subpoena authority of the Commission. As an impartial, factfinding body, the Commission has a legal obligation, conferred upon it at its origin, to fully secure critical information that allows for a continuous appraisal of the status of civil rights in this nation. This mandate, standing alone, is sufficiently compelling to justify the jealous protection of the Commission's subpoena power. For that reason, restraints on the use of this authority should not be considered by this Congress unless and until a conclusive foundation has been established in support of the restriction. I submit, that no such groundwork has been completed that would wholly justify the unprecedented constraints on the Commission's powers that have been proposed. A very large part of my concern over the proposed intervention into the province of the Commission's powers rests on the realization that there already exist considerable restraints on the Commission's authority in this area. For example, of all of the federal independent commissions, the U.S. Commission on Civil Rights and only two other 1 This legislation would limit the "ommission's subpoena authority to investigations and then only into specific incidents involving a deprivation of the right to vote or "in any other case, if the subpoena is directed to an officer or employee of the Federal, State or a local government, 2 commissions are required to seek enforcement through the United States Attorney General. In short, no subpoena issued by the Commission may be enforced unless a U.S. Attorney seeks such an order before a court of appropriate jurisdiction. Thus, one cannot claim that the U.S. Commission on Civil Rights is potentially more pernicious in view of its subpoena authority, the fact is that it cannot be, because the Commission has the least amount of power of other agencies. Why now reverse 39 continuous year of Civil Rights Commission Subpoena Precedent? Secondly, the Commission's prudent exercise of subpoena authority has enjoyed an uninterrupted history of proper functioning. Oliver Wendell Holmes once said: a page of history is worth a volume of logic." This authority has been in place for thirty-nine years. Before I would throw out thirty-nine years of experience to make any significant modification, there must be some compelling logic to throw it out. I urge this Committee to begin with the point that no one has made a suggestion in any document that the United States Commission on Civil Rights is out of tandem with what everyone else does, or that the Commission has been more harsh, irresponsible or unfair with the use of its authority. Instead, we have only heard unsupported claims that broad limitations are required. When these proposed limitations are examined, it becomes readily apparent that vast classes of potentially critical witnesses would be exempted from the factfinding and investigatory powers of the Commission. Some of these exemptions would be established where attempts are made to craft categories of witnesses that would be subject to the Commission's subpoena authority. The Commission has held full discussions on the potential consequences of these exemptions on the ability of the Commission to carry out its responsibilities. The Commission recognizes, for example, that it is extremely difficult to draw distinctions among types of witnesses that should be subject to the subpoena authority of the Commission. Let us take a look at these proposed classifications. For instance, we have taken a look at attempts to treat “fact” witnesses in a different manner than "perspective” (“opinion”) witnesses. For purposes of the Commission's subpoena power, those attempts cannot stand under the weight of a proper analysis. As a practical matter, there simply can be no bright line drawn that would properly separate witnesses into groups based on the perceived or anticipated factual certainty of their testimony. Invariably, legitimate questions would arise as to in which category a particular witness would fall and whether, therefore, this witness would be exempt or subject to the subpoena authority of the Commission. The indecision that would surround these questions would give rise to a predictable preoccupation with preliminary preclusion of witnesses. This would ultimately lead to a frustration of the Commission's ability to collect meaningful information in fulfilling its mission 'See Transcript of Proceedings, Meeting of the U.S. Commission on Civil Rights, May 10, 1996. 3 Similarly, efforts to reduce or otherwise modify the Commission's authority to require certain classes of witnesses to produce documents could render the Commission absolutely ineffective. Tampering with the Commission's authority to issue subpoenas duces tecum would preclude important potential witnesses from producing necessary documents. Many citizens may possess information that would be useful to the Commission in covering its traditional role as the "civil rights conscience of the nation." Only an extremely small percentage of those citizens are ever requested to present that information to the Commission. To dramatically curtail a useful power of the Commission that is carefully used under limited circumstances would represent, in effect, a significant impediment to the type of comprehensive hearing that the Commission is expected to convene for the purpose of pursuing its mandate. Deceptive Differentiation Between Private and Governmental Entities - I am fundamentally opposed to any proposal that seeks to distinguish between private Let me offer a simple example that may make plain the flawed reasoning of those who may support such a distinction. Many of the people who are going to prison now are not in "state prisons." There are prisons that are being operated by private corporations. Let us assume, arguendo, that some of these private corporations – in the administration of their jails are seriously violating the rights of inmates. Should the Commission be forced to turn away from these violations on the basis that they were committed by a private corporation. As you can see, a public vs. private distinction may preclude a proper investigation into legitimate claims of civil rights violations. If an entity is big enough to violate civil or human rights, whether it be General Motors, Mitsubishi, or EEOC, or the State of Mississippi, there should be no distinction. Such a distinction is bereft of historical foundation. When the historical record is examined fifty years from now, it will reveal that it was a great moment for the Commission when Dean Erwin Griswold, former Chairman of the Commission, was in Mississippi, dealing with private entities who were involved in vigilante movements to deprive people of their rights. Griswold stood up against the vigilante movements, which were responsible for tremendous violence, including the murder of Medgar Evers, the former field secretary for the National Association for the Advancement of Colored People (NAACP). There was no need to worry about offending private enterprises then, and there is no need to worry about it now. It would be a woeful repudiation of the historic mission of the Commission to mistakenly rely on this private versus governmental distinction. This distinction would burden the Commission's subpoena authority and turn the clock of history back. I submit that the current subpoena authority of the Commission must remain intact in order for the Commission to fulfill its historic mission. This authority is proper, it has withstood legal challenges, and has been exercised with prudence. For all of these reasons, I urge you to retain this authority, without modification, and to reauthorize the Commission with its full powers. IV. Unwarranted diversions that could preclude us from focusing on the fundamental disparities in our Nation The United States Commission on Civil Rights was created for a purpose far more profound than to become merely an institution which spends disproportionate amounts of its time as a debating society on theoretical or tangential issues which have little if anything to do with the many substantial disparities that still exist in this country by reason of race, color, sex, age, religion, disability, and national origin. With all of the fundamental core problems we have in this Nation, it strains my credulity to comprehend why this Subcommittee is becoming involved in such tangential matters as the subpoena "problem." Only in recent months has there been any movement by anyone that we should direct our attention from other matters to focus on the subpoena "problem". I submit respectfully that, though perhaps unintentionally, the absorption of considerable time on the subpoena serves only those who want to divert the Commission from focusing on some of the massive disparities, polarization, and the racial and religious hatred that still exist in our country. Now, instead of focusing on these and other pertinent matters, persons who are not seriously committed to a civil rights agenda can justify endless debates on subpoena power rather than focusing on methodologies to reduce the disparities in this country. Thus, for me, it is essential that on this record some reference should be made to the disparities that continue to plague us. On any comparative basis, these disparities are so overwhelming that it is heart-breaking to see the subpoena issue becoming magnified beyond any element of rationality. I sometimes feel that this debate stretches to such a level of irrelevance that it becomes like the argument Samuel Johnson described as "too foolish for buffoonery [and] too wild for madness." 'See, eg., Hannah v. Larche, 363 U.S. 420 (1960). |