Some fo the sharpest comments in a Washington Post survey about opening up the judicial system to more public scrutiny concerned the Judicial Conference of the United States, which governs the federal judicial system.
Congress created the conference in 1922 to try to ease congestion of cases in the federal trial courts and to achieve greater uniformity in sentences for similar crimes. While these problems have persisted through the decades, the conference has taken on much broader responsibilities.
Its chairman is Chief Justice Warren E. Burger. Its 24 members are the chief judges of the 11 U.S. courts of appeals, a district judge elected by his peers in each circuit, and the chief judges of the Court of Claims and the Court of Customs and Paten Appeals. They meet semi-annually ath the Supreme Court in absolute secrecy.
Controversy about the conference has arisen partly because it routinely takes stands on legislation after developing them behind closed doors. When Earl Warren was chief justice in 1967, for example, the conference offered its views on wiretapping legislation that was pending in Congress at the time.
The conference "chose a pro-tap bill in preference to a bill banning all wiretapping, and it favored a bill that was clearly unconstitutional under existing Supreme Court precedents," reporter John P. MacKenzie, who formerly covered the Supreme Court, wrote last year.
The conference did this with a resolution to which no dissent was recorded. Yet, MacKenzie said, inquiries to several members of the conference - senior and prominent judges - "yielded the inescapable conclusion that many fo them has no idea of what they had done."
One of the most important functions of the conference has been drafting rules of procedure for the federal courts and sending the rules to Congress, which has the power to reject them.
In 1963, when the Rules of Civil Procedure came to the Supreme Court en route to Capitol Hill, then-Justices Hugo L. Black and William O. Douglas dissented.
Many of the rules, they said, "determine matters so substantially affecting the rights of litigants in lawsuits that in practical effect they are equivalent of legislation which, in our judgement, the Constitution requires to be initiated in and enacted by the Congress and approved by the president.
"The Constitution, as we read it, provides that all laws shall be enacted by the House, the Senate, and the president, not by the mere failure of Congress to reject proposals of an outside agency" such as the conference.
In 1969, the conference adopted guidelines for the non-judicial income and activities of federal appeals and district judges.
In 1970, when his Senate Judiciary subcommittee on separation of powers held hearings on the conference, then Sen. Sam J. Ervin Jr. (D-N.C.) said of the conference's members:
"They certainly do not act as judges when they vote to approve or disapprove of pending legislation, or adopt rules of financial disclosure for their colleagues. Why, then, should the conference meet in secret"