Posthumous Access Debated in Congress p.

By: Debra Gersh

Senate subcommittee hears testimony following the
recent publication of excerpts from the papers of
the late Supreme Court Justice Thurgood Marshall
WHEN THE WASHINGTON Post ran a series of articles this spring based on the papers of the late U.S. Supreme Court Justice Thurgood Marshall, it created quite a stir.
The controversy, however, seemed to focus less on the information in the articles ? which documented the seldom-seen inner workings of the Court ? than on when or whether the papers should have been released.
Some argued that the papers should have remained closed until long after Justice Marshall’s death ? certainly until justices and cases mentioned were no longer involved with the Court ? and, even then, access should only have been given to “”serious researchers,”” not mere journalists.
The librarian of Congress, however, recently told a U.S. Senate subcommittee hearing that when Justice Marshall bequeathed his papers to the library in October 1991, he stipulated that the papers be made available to the public after his death with no restrictions.
Justice Marshall died Jan. 24, 1993, and, while the first researcher accessed the papers Feb. 2, the Post did not begin its research until May 5, according to James H. Billington, librarian of Congress.
“”It is the donor who decides when the collection is to be made accessible and on what conditions,”” Billington testified, noting that Justice Marshall controlled access to the papers during his lifetime but made the collection “”available without restriction”” after he died.
In fact, Billington added, Justice Marshall had the opportunity to amend that procedure but did not. Each donor sets the parameters for access to his or her papers.
“”My own view as a historian is that judicial papers should be preserved in as complete a fashion as possible,”” Billington stated. “”These collections help us understand the critical role the Court has played in our national life, but they also underscore the characteristically American openness that members of the Court have permitted in the examination of the judicial process.””
Billington further urged the Senate Subcommittee on Regulation and Government Information “”to consider information in electronic forms and formats.””
“”Court opinions are now being electronically disseminated across the nation,”” he testified. “”The hard memory disks in the personal computers of Supreme Court justices and their staffs contain information of historical value equal to that of the much-publicized electronic documentation being created by White House staff.””
As with this case, archivists often are caught in the middle of these controversies, even though they are acting only at the behest of the donor.
Anne Kenney, president of the Society of American Archivists, explained to the subcommittee that the Library of Congress is currently in an “”archivist’s nightmare.””
While “”archivists embrace a position that supports making historical papers accessible with all due speed,”” they also balance that with the need “”to protect and honor the interests of donors, as well as those of their families and third parties that may be adversely affected by the contents of such collections,”” she stated.
Kenney believes it “”would be a grave disservice to Justice Marshall, the Library of Congress and the entire archival profession for the librarian [of Congress] to ignore the will of the donor and reclose the papers or restrict access to them . . . .
“”The problem with the Marshall agreement isn’t so much one of language or intent, but of timing: had Justice Marshall died 10 or 20 years from now, these issues would probably be moot,”” Kenney noted.
While there was mixed opinion about whether Congress should ? or constitutionally could ? mandate regulations governing justices’ papers, some who commented were staunchly against it.
Although neither he nor his associates were able to appear, U.S. Supreme Court Chief Justice William H. Rehnquist sent a letter to subcommittee chairman Sen. Joseph I. Lieberman (D- Conn.) on behalf of the justices.
“”(W)e have no hesitancy in expressing the opinion that legislation addressed to the issues discussed . . . is not necessary and that it could raise difficult concerns respecting the appropriate separation that must be maintained between the legislative branch and this Court,”” the Chief Justice wrote.
Another witness arguing against congressional regulation, albeit for different reasons, was Jane E. Kirtley, executive director of the Reporters Committee for Freedom of the Press.
“”We believe that government is presumed to be open and that laws that limit the public’s access to information about the government threaten the core of democracy,”” Kirtley testified.
“”Laws limiting access to government information should be considered only as a last resort, and only when there is a compelling need to avoid real dangers that would occur as a result of disclosure.
“”This is not one of those situations. This is not the time for Congress to be concerned,”” she said. “”Release to the public of the papers collected by Justice Marshall does not bode ill for the country, [and] does not call for curative legislation.””
The articles based on the papers “”show that the nation’s highest court is in order, works hard, works conscientiously,”” she said.
Kirtley added, however, “”As someone who speaks on behalf of an industry that is constantly berated for its negative outlook, let me say I am surprised and chagrined that, when we print good news, someone wants to pass a law against it.
“”Certainly if Justice Marshall’s papers had indicated that all was not well with the Court ? for example, if justices were shown to be lazy or corrupt ? that would also have been news, news that could provoke the citizenry to seek change as it has in the past when it learned, from journalists, of abuses of power,”” she pointed out.
“”But Congress is now contemplating legislation to reduce public access, not because it has identified any harm from disclosure, but in understandable but misguided deference to concerns articulated by the Chief Justice of the Supreme Court and the Marshall family. I believe that the public’s interests are not served by this mission and that it should be abandoned,”” Kirtley stated.
Addressing the issue of journalists not being “”serious”” researchers, Kirtley noted that this “”is a curious view and one we are certain would not have occurred to Justice Marshall.
“”The justice consistently supported the First Amendment and freedom-of- information rights of journalists. He also chose to speak at length with at least two journalists, Juan Williams and Carl Rowan, in the belief that they would be writing the story of his life,”” she continued.
Further, while a Washington state court found “”access to records could be exploited by journalists,”” Kirtley noted, “”with all due respect to the justices of the Supreme Court, it is highly unlikely that these papers would lend themselves to sensational treatment. Reporters in search of frivolity will have to look elsewhere . . . . (R)eporters can and did produce thoughtful pieces after examining Justice Marshall’s papers.””
While no one has “”unique insight into what Justice Marshall intended to happen to his papers,”” Kirtley noted, there is no evidence that he “”intended any disposition of the papers other than the one that has occurred.””
A former clerk to Justices Robert H. Jackson, Felix Frankfurter and John Marshall Harlan, attorney E. Barrett Prettyman Jr., suggested that either the Court or Congress set some sort of policy for release of all such documents.
“”I personally believe that a constructive approach, mandating henceforth the Court papers of all future justices shall become property of the United States and shall be released to the public only after a period of, say, 25 years from the justice’s death, would be welcomed by all three branches and by the public,”” stated Prettyman, an attorney with the firm of Hogan and Hartson in Washington, D.C.
Release of the Justice Marshall papers is not the first time in history that such a disclosure has raised a stir, but neither have such short-lived scandals deterred justices from donating their papers, according to Dennis J. Hutchinson, editor of the Supreme Court Review and constitutional law and legal history professor at the College and the Law School of the University of Chicago.
“”We must not forget that it is only since 1956 that the question arises at all,”” Hutchinson explained. “”In that year, Alpheus T. Mason of Princeton University published his landmark biography of the late Chief Justice [Harlan F.] Stone, using Stone’s working papers with the Stone family’s approval and encouragement. The negative reaction was immediate and consuming . . . .””
Nevertheless, and despite predictions to the contrary, “”every member of the Court sitting when the biography of Stone was published subsequently donated his judicial working papers to a research library,”” according to Hutchinson.
In addition, after publication of The Brethren, an inside look at the Court by Bob Woodward and Scott Armstrong, “”again, despite predictions that the Court had suffered another mortal wound, a substantial majority of the sitting justices at the time of publication subsequently elected to donate their working papers to a research library . . .
“”Unless present members of the Court, all witness to the events of the last few weeks, elect to buck what had appeared to be a well-settled trend, there is simply no reason for legislative intervention on either a piecemeal or systematic basis,”” Hutchinson testified.
Subcommittee chairman Sen. Lieberman noted in his remarks that he is not proposing a Judicial Records Act that would mandate preservation and access to such records, although he does believe the “”process of developing a set of guidelines . . . needs to begin.””
In addition, while he is willing to wait for the Court to address these issues, Sen. Lieberman added, “”I do not think that Congress can wait forever for the Court to act. In this regard, it is significant that Chief Justice [Warren] Burger attempted to address some of these issues on a courtwide basis 20 years ago, apparently without success.””
Sen. Lieberman also noted the importance of addressing the issue of preservation of electronic records.
“”In fact,”” he said, “”the dawn of the electronic age gives urgency to the need to examine and deal with records preservation.”nE&P
?Some argued that the papers should have remained closed until long after Justice
Marshall’s death . . . and, even then, access
should only have been given to “”serious researchers,”” not mere journalists.
?Reuters photo
?The late Supreme Court Justice
Thurgood Marshall’s desire to make public his papers immediately following his death has created a debate.
? “”We believe that government is presumed to be open and that laws that limit the public’s access to information about the government threaten the core of democracy,”” Kirtley testified.

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