SPEAKERS CONTENTS INSERTS
Page 1 TOP OF DOCJUDICIAL MISCONDUCT AND DISCIPLINE
THURSDAY, MAY 15, 1997
House of Representatives,
Subcommittee on Courts and
Committee on the Judiciary,
The subcommittee met, pursuant to notice, at 9:03 a.m., in room 2237, Rayburn House Office Building, Hon. Howard Coble (chairman of the subcommittee) presiding.
Present: Representatives Howard Coble, Charles T. Canady, Sonny Bono, Edward A. Pease, John Conyers, Jr., Barney Frank, Zoe Lofgren, and William D. Delahunt.
Also present: Representative Ed Bryant.
Staff present: Mitch Glazier, chief counsel; Blaine Merritt, counsel; Vince Garlock, counsel; Debbie Laman, counsel; Veronica Eligan, staff assistant; and Robert Raben, minority counsel.
OPENING STATEMENT OF CHAIRMAN COBLE
Mr. COBLE. The subcommittee will come to order. It's good to have you all here. I figure there will be other folks coming in. It's a little after 9 o'clock and Marty and I believe in starting promptly. I think we penalize those of you who do show up at the designated time and 9 o'clock was the announced hour.
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In the wake of yesterday's legislative hearing on H.R. 1252, we will now broaden our focus considerably by engaging in a more general and free-ranging discussion of judicial misconduct and discipline. Beginning with the Warren Court of the late 1950's, members of the legal community, court watchers, and other interested Americans have grown increasingly critical of what they believe constitutes judicial activism. Many, perhaps most, of these critics believe that the fundamental job of any jurist is to interpret the law and apply it impartially to the affected litigants in a given case. The worst thing a judge can do, in my opinionand also these critics assert thisis appropriate the role of a legislator by creating law; that is, by reading personally-held convictions of a social or political nature into a decision that is otherwise not founded or may not be founded on legislative intent or case law precedent.
The term ''misconduct'' may be not unlike a piece of abstract art. It means different things to different people. Gerald Ford once stated that an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history. Others believe a judge may only be impeached for indictable offenses, and that critics of activism are simply disgruntled over the outcome of certain legal disputes about which reasonable men and women differ.
Our witnesses today, no doubt, possess varying opinions on the subject. As a result, and given the controversy this issue generates, I look forward to all the testimony that we will receive today.
I now recognize the ranking member of the subcommittee, the gentleman from Massachusetts, Mr. Frank.
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Mr. FRANK. Thank you, Mr. Chairman, and let me commend you for this policy of starting on time. I think this notion that you set a time and then wait around is particularly unfortunate in this place where almost everybody has conflicting schedules, and I hope people will now understand that it will be your intention to start on time and we'll be better off.
I must say this seems to me a hearing in search of a serious purpose. There is, I think, a political purpose being served, but not a substantive one. I do not think we ought to be contributing to a climate in which misconduct is made into a fairly vague vehicle and can be used for people who are unhappy when they don't like what justices say. It is true we have recently seen an increase in judicial activism of a sort. For instance, I was just checkingbeginning in 1990, the U.S. Supreme Court has invalidated 1, 2, 3, 4, 5, 6, 7 statutes8, 9, 10, 11, 12a large number of statutes12, since 1990. Now, the fact is that if you look at the appointees there, overwhelmingly these 12 statutes have been invalidated by the appointees of Republican Presidents. And I do not think that anybody ought to imply that there's any misconduct when the Supreme Court Justices strike down a statute. I think that's their job. It is sometimes the fault of the Congress that has legislated sloppily or in the face of some short-term public pressure, ignoring the constraints.
So that when the Justices Scalia, and Thomas, and Rehnquist, and others join in striking down statutes, despite the fact that they may be sometimes criticizedJustice Scalia has noted the number of people who criticized him when he struck down the laws against flag burning, but he felt his duty to the first amendment was there.
Page 4 PREV PAGE TOP OF DOC People should be able to disagree with the substance of the decision, as is everybody's obligation when they disagree, without impugning the legitimacy of their actions. And we should note the fact that of the nine Supreme Court Justices, seven who now sit were appointed by Republican Presidents, and, indeed, as I've counted up, the Republican appointees have been more eager to strike statutes than the Democratic appointees. But that is an irrelevancy. I mention it, frankly, because of the political context in which some of this has come forward.
I would also ask to introduce into the record at this point, Mr. Chairman, because it's going to be relevant, a letter which I received from the town administrator and the police chief of the town of Brookline, one of the larger communities that I represent. People will remember this as the community where John Salvi murdered two women who were working in abortion-provider clinics. And the town of Brookline has been plaguedwas plagued for yearswith enormous turmoil because of people who were physically interfering with people's constitutional rights to get an abortion. People obviously have a right to protest and object, but there is a constitutional right to get that.
Finally, the town was able to get some judicial relief. They were able to, relying on what some I suppose would denounce as judicial activism, get protection. And in the letter from the police chief and the town administrator, Chief O'Leary and Administrator Kelliher say: ''As a result of decisive action taken by the courts, the disorder around Brookline's clinics has diminished significantly.'' Indeed, the man who was the district attorney for the jurisdiction including Brookline for some time sits with usmy colleague from Massachusettsand I think this whole example might come forward further.
Page 5 PREV PAGE TOP OF DOC And I mention that because I assume one of the examples of activism we will get into was the district court judge in New York, Judge Sprizzo, who took it on himself to give people license to simply defy the law. He took it on himself to announce that people who were physically blocking an entrance to an abortion clinic and thereby violating an injunctionand unquestionably violating the injunction and unquestionably physically blocking, illegally, the entrance to an abortion clinicshould face no penalty and no bar because they were sincere about it.
Well, that's a lamentable example of judicial activism, disregarding the law and disregarding the rights of other citizens, and I think it's legitimate to criticize it, but I don't think that that kind of action is the basis for changing the fundamental structure of government and that's, I guess, one of the things that we were going to do.
Thank you, Mr. Chairman. I'd offer this letter for the record.
[The letter follows:]
Congressman BARNEY FRANK,
|Town of Brookline,|
|Brookline, MA, May 12, 1997.|
2210 Rayburn House Office Building,
DEAR CONGRESSMAN FRANK: Recently, your office inquired about the role of the judiciary in preserving public safety and protecting constitutional rights when conflicts arise around women's health clinics that provide abortion services. We have found that nothing short of a concerted effort by the entire criminal justice systempolice, prosecution, and the courtscan provide the level of security necessary to protect clinic personnel and clients, nearby residents, businesses, public demonstrators, and the community at large.
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The Town of Brookline is a 6.5 square mile municipality with a population of 55,000, bordered on three sides by the City of Boston. We are immediately adjacent to Boston's internationally renowned ''Medical Area.'' Because of our proximity to many major medical institutions, the Town has the greatest concentration of women's health clinics in this State. Indeed, the extent of services provided here is likely unsurpassed by any locale in the country.
Not surprisingly, then, Brookline has been the site of much political activism, public confrontation, and unfortunately tragedy. Thousands of individuals have utilized our streets and sidewalks to demonstrate on all sides of the abortion issue. On December 30, 1994 two clinics were assaulted by a gunman who killed two administrative staff and wounded several others.
For the past ten years, the Town of Brookline, has struggled to find ways to deal effectively with disorder. Initially, the Town sought and obtained additional manpower from the State Police and prosecutorial assistance and advice from the District Attorney's office concerning the establishment of sufficient grounds for arrest and prosecution. In early demonstrations, police arrested clinic blockaders under the authority of state laws governing criminal trespass and disorderly conduct and pursuant to a local By-law prohibiting the obstruction of public sidewalks.
A decision by the Supreme Judicial court in an unrelated case, however, narrowed the circumstances under which persons could be arrested for disorderly conduct and cast doubt upon the viability of prosecutions under the local Bylaw. As a result, the local District Court dismissed many cases involving clinic blockaders who had been charged with disorderly conduct and violation of the Brookline's By-law. Clinic blockades could be accomplished easily without violating the criminal trespass statute, the only remaining law applicable to clinic blockaders that carried a right of arrest.
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In April of 1989 the Planned Parenthood League of Massachusetts and others initiated a civil action in Middlesex Superior Court seeking to enjoin certain named defendants and those acting in concert with them from blocking access to clinics and from physically obstructing persons entering or leaving the clinics, In July of 1989, a judge of the Superior Court issued a preliminary injunction pursuant to the Massachusetts Civil Rights Act which made violation of the injunction an arrestable, criminal offense. The injunction immediately provided a useful tool for Brookline Police by establishing clear grounds for the arrest and criminal prosecution of clinic blockaders.
The Supreme Judicial Court, in Planned Parenthood League of Massachusetts. Inc. v. Operation Rescue, 406 Mass. 701 (1990) affirmed the issuance of the preliminary injunction. In April of 1990, the Attorney General intervened as a plaintiff on behalf of the Commonwealth and, in 1994, after trial on the merits, a judge of the Superior Court entered a permanent injunction pursuant to the provisions of the Massachusetts Civil Rights Act, which we finally affirmed in Planned Parenthood League of Massachusetts. Inc. v. Blake 417 Mass. 469 (1994).
The Supreme Judicial Court and the Appeals Court have subsequently upheld convictions arising out of the permanent injunction. In both Commonwealth v. Filos, 420 Mass. 348 (1995), and Commonwealth v. Manning, 41 Mass. App. Ct. 696 (1996), the Commonwealth's appellate courts have affirmed convictions of criminal contempt for violating the permanent injunction. In Planned Parenthood League of Massachusetts, Inc. v. Bell, 424 Mass. 573 (1997), a unanimous Supreme Judicial Court affirmed the entry of a preliminary injunction directed at an individual protester which barred her from standing within fifty feet of a clinic. Among other things, a judge of the Superior Court found that the defendant created an actionable nuisance by the volume of her voice and her previous violations of the permanent injunction.
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As a result of the decisive action taken by the courts, disorder around Brookline's clinics has diminished significantly. The state legislature responded to the action taken by the courts by passing legislation which embodies some of the prohibitions found in the permanent injunction first entered by the Superior Court and later affirmed by the Supreme Judicial Court. This legislation, General Laws Chapter 266, Section 120E, not only prohibits the obstruction of access to a medical facility but also provides for criminal penalties, arrest authority, injunctive relief and the award of attorney's fees.
The Town could not have protected the exercise of constitutional rights and preserved public safety to the extent it has without a criminal justice system committed to these very same goals. Other jurisdictions with similar challenges can learn much from the Brookline experience. We hope this information is helpful to you and those of your colleagues who are interested in it.
|Richard J. Kelliher,|
|Town Administrator. |
cc: Board of Selectmen.
|Daniel C. O'Leary,|
Mr. COBLE. The ranking member of the full committee, Mr. Conyers, do you have an opening statement?
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Mr. CONYERS. Could I defer mine, Mr. Chairman?
Mr. COBLE. That will be fine.
Mr. CONYERS. Thank you.
Mr. COBLE. Let me saylet the first panel come forward, and the gentleman from Massachusetts has requested permission to sit on this panel as well, and the Chair will grant that request. Bill, if you can take you a chair out there, it's good to have you all with us.
I was going to say this in my opening statement. I failed to, folks. These hearings, yesterday and today, have generated much interest. I have received telephone calls literally from border to border, coast to coast. One call tore my face off for daring to conduct a hearing to investigate Federal judges. ''How dare you do that?'' And then there was another call who wanted us to strip every Federal judge of his power from here to yonder.
So my point is, I think these phone calls probably are going to represent what we will hear today. There's going to be a wide, broad line of disparity here, and there's nothing wrong with that. One of our witnesses yesterday talked about the importance of rule of law. And I made it clear that the purpose of these hearings is not to dismantle rule of law. The fact that we have rule of law is why we can have hearings like this.
So, having said that, it's good to have our first panel
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Mr. FRANK. Mr. Chairman, let me just make you a promise, which is that as of tomorrow noon I will take your number off my call-forwarding mechanism. [Laughter.]
Mr. COBLE. I appreciate that. So that'shere's the villain, huh?
It's good to have you all with us. I noticed that one of our members is not here, but as Mr. Frank said, we live in a tight timeframe now. The gentleman from Georgia, who is a member of the full committee, Mr. Barr; the whip, the gentleman from Texas, Mr. DeLay, had requested to appear. He may or may not arrive. Mr. Hostettler from the Hoosier State of Indiana. What are your committees, Mr. Hostettler?
Mr. HOSTETTLER. National Security and Agriculture.
Mr. COBLE. It's good to have you with us. And Ms. Lowey from New York, and, Nita, your committees are?
Ms. LOWEY. Appropriations.
Mr. COBLE. Oh, you're one of the power people. [Laughter.]
Ms. LOWEY. It used to be that way
Mr. COBLE. And, of course, our friend from Massachusetts, Mr. Delahunt.
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Now, folks, I will let you all do this any way you want to. Mr. Barr, since you are on the committee and have been touted, I'll let you select how they want to move. If you want to go first, that will be fine.
STATEMENT OF HON. BOB BARR, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA
Mr. BARR. If that would please the Chair, I have no problem with that. It certainly is an honor to be here today to appear before a panel of my colleagues on the Judiciary Committee.
Mr. COBLE. If the gentleman will suspend just a minute, Bob.
Folks, yesterday I was very lenientI think anyone who was here yesterday will agree with thattimewise. Mr. Frank says too lenient and perhaps so. Now, I'm going to be a little more stern today, so you all are familiar with the 5-minute rule. And I would ask the subsequent witnesses as well, and as well as the members of the subcommittee, if we can comply with this because it will be a hectic day.
As you know, Mr. Barr, when that red light illuminates, that is a warning to you. Now, nobody's going to be keelhauled or bustled, but I hope you can comply with the 5-minute rule as close as we can. So having said that, Bob, go ahead.
Mr. BARR. Thank you, Mr. Chairman. Again, it's an honor to appear before the chairman, as well as the other members of the Judiciary Committee and with this distinguished panel.
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Mr. Chairman, I do have a statement that I would appreciate submitting for the record and I will not read through the entire one. Mr. Chairman, there was an articleand I'm not sure which paper it appeared in todaybut I know it was on the front page and it lamented the fact that there aren't enough judges; that perhaps the nomination procedure or the confirmation procedure in the Senate is moving too slowly. And that got me thinking that perhaps the problem isn't that we don't have enough judges, but maybe we have too many judges. And I know that that's not really the primary focus of this committee, but it does highlight something.
For example, Mr. Chairman, the number of Members of this great body has remained constant at 435 since, I believe, early in this century, about 1910. And that includes the intervening 87 years. The fact of the matter is, though, Mr. Chairman, that the number of article III judges in this country has mushroomed just in recent decades, nearly tripling from 300 in 1960 to 800 or more today. And I know that there are some that believe that this is certainly commensurate with the increase in legislation, and so forth, and therein may also lie a problem.
The fact of the matter is, though, Mr. Chairman, we do have an awful lot of laws, an awful lot of judges going far beyond simply interpreting those laws into areas that I believe were clearly envisaged by our Founding Fathers and by learned jurists since the founding of our country as within the prerogative of the other two coequal branches of government, the executive and the legislative.
The main thing that I would like to stress to this committee is that we ought not to be afraid to discuss these issues. It is not so much my concern that judges are making decisions with which I or my constituents or others disagree. That's not the point to me. What is the point is that we have judges that are usurping for their branch of government or for them personally powers that do not belong to them. It is not a question of reining in the independence of the judiciary, Mr. Chairman. Quite the contrary. I think what we ought to be about and what my concern is is that we hold the judiciary to its proper jurisdictional and constitutional role and within those parameters we want them to be as independent as possible. As a matter of fact, the problem here is that they aresome of themare too dependent on their personal or political views and I think we ought to be searching for more independence for the judiciary, so that they are free from using their personal or political views to decide cases.
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I was on a panel not too long ago, discussing this issue with a gentlemanI think he was the head of the ABA, but I'm not absolutely certain, but I know he was a very learned lawyer and was very active in these mattersand he compared my effort to highlight the fact that we need to discuss these sorts of issues, including perhaps such things as looking at whether impeachment is a proper tool, as Alexander Hamilton and others of our Founding Fathers believed that it was, and a tool that has been talked about in the decades and years since then as being a very appropriate tool to rein in the judiciary, as well as reining in other branches of our Government where we have individuals that abuse their power.
Also, looking at perhaps limiting the tenure of Federal judges, this is something, Mr. Chairman, that I hear about on a regular basis in townhall meetings. That doesn't mean we should do it, but it certainly means that it is something that is on the minds of our constituents and we ought to sit up and take notice of it.
Also, Mr. Chairman, the possibility of looking at some of the terminology that is used in our constitutions such as ''good behavior'' and looking at perhaps defining that, trying to come to grips with, What does that mean? We know it doesn't mean ''bad behavior,'' but beyond that, what does it mean? And I don't think we should be at all afraid to start thinking about these things.
Yet when I raised these issues in a forum, as I mentioned, not too long ago, this very learned gentleman from the ABA said, well, this is like communism, talking about reining in judges and holding judges to community standards, and so forth. That struck me as rather odd, Mr. Chairman. The fact of the matter is that where you have an imperious judiciary that is subsuming for itself the duties of the other two branches of government, that is something much closer to totalitarianism than simply saying we want our judiciary to be independent, but to operate as each of the other two branches of government have to do and the representatives thereof, and that is within the bounds of limited jurisdiction.
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And so, I very much appreciate the committee having the fortitude, the foresight, and the courage to begin looking at these issues. I know they're very contentious, but we do need to. The credibility of our judiciary and ultimately of our system of government depends on it. Thank you, Mr. Chairman.
[The prepared statement of Mr. Barr follows:]
PREPARED STATEMENT OF HON. BOB BARR, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA
In recent years, many of usand millions of our constituentshave become alarmed at the number and brazenness of Federal judges who use the opportunity of rendering decisions to implement their personal or political agenda. In many respects, these judges are assuming for themselves the powers and responsibilities of legislators or executives. This has blurred, if not eradicated, the separation of powers foundation of our system of government; it has resulted in a number of blatantly political ''judicial'' decisions; and, literally in some instances, endangered the lives of our citizens.
Our concern is not that we disagree with the decisions of certain judges (though in many instances we and our constituents do). Nor is our concern that we have a judiciary that is not independent. Quite the contrary. We want the judiciary to operate independent, independent of the personal or political views of the judges themselves. We want judges who are independent, but who operate within the bounds of the law and of their jurisdiction as found in our Constitution and in common and well-founded concepts of-representative democracy.
Page 15 PREV PAGE TOP OF DOC Judges must, just like those of us in the legislative or executive branches of government, operate within the bounds of, and be answerable to, the Constitution.
In recent years, we see judges deciding for themselves whether the electoral decisions of the people shall stand (in California and Texas); whether the political institutions of a government shall determine how or who shall have the power to levy taxes or whether judges can unilaterally raise taxes (in Missouri); or that large quantities of mind altering drugs will remain on the streets and wind up in the veins of our children because a judge believes the police are less trustworthy as a whole than criminals (in New York).
In order to properly and responsibly study this important matter, it is time to begin exploring how and in what way we might take steps to ''re-balance'' and restore integrity to our Federal judicial system. This includes, but is not limited to, exploring the manner in which the constitutional tenure for judges to hold their office during ''good behavior'' can be fully effectuated to take into account the consequences for misbehaviora problem plainly presented the American people by the assumption of power beyond the scope of the office.
There are, as with other problems confronting our public institutions a number of ways that the problems of judicial activism or overreaching, can be addressed: defining ''good behavior''; limiting tenure of judges; limitations on the jurisdiction of judges, and impeachment.
For example, just as the Constitution establishes a nation of laws, and not of men, there must exist a tenure standard for all who draw a paycheck from, and who exercise power on behalf of, the Federal Government. For those elected to office, it is either two, four, or six years. for those appointed in the political branches, it may be a term of years, or an indefinite appointment subject to removal for malfeasance, nonfeasance, or for other good cause that promotes the efficiency of the public service.
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The Constitution furnishes a tenure standard for Federal judges that they serve ''during good behavior,'' which, it has long been posited, equates with ''life tenure.'' While ''good behavior'' clearly does not encompass ''bad behavior,'' the issue of removal for cause has been addressed only through the impeachment clause in article II, section 4 of the Constitution applicable to all civil officers of the United States. The House Judiciary Committee staff during the Watergate episode noted that the interpretation of the ''good behavior'' clause had not been made clear in previous proceedings, but that ''judicial impeachments have involved an assessment of the conduct of the officer in terms of the constitutional duties of his office.''
These questions of tenure take on increasing importance in the environment where a large and powerful federal judiciary renders decisions that are inconsistent with fundamental democratic principles.
Until recently, the Federal judiciary was a modest appendage of the Federal Government. No longer. The size of the House of Representatives has remained constant at 435 since 1910. By contrast, the size of the Federal judiciary has grown, just since 1960, from 300 to over 800. With this vast expansion of Federal power has come a far greater tendency toward abuse.
In the latter part of the nineteenth century, Federal judges had articles of impeachment brought against them for, among other things, being intoxicated with alcohol. More recently, however, we see intoxication of another, but nonetheless highly pernicious, sort.
I believe this is what Alexander Hamilton had in mind in his discussion in the Federalist Papers, that in the constitutional design the ultimate recourse in the event the judiciary usurps legislative powers is impeachment by Congress.
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This has been thoroughly understood in every period of our history. Writing in the Harvard Law Review in 1913, for example, Justice Department Official Wrisley Brown, whose investigation led to the impeachment of Judge Robert W. Archibald, said impeachment is a political remedy to a political problem: ''It is directed against a political offense. It culminates in a political judgment. it imposes a political forfeiture. It is a political remedy for the suppression of a political evil, with wholly political consequences.'' (Paul Craig Roberts, Washington Times March 20, 1997)
We owe it to our country, our constituents, and our Constitution, to fully explore all these options (and perhaps others). We ought not to shy away from this challenge. Wein the Congressare obligated to do so. it is our job. It is our duty. The American people expect it of us. The integrity of our system of ''rule by law,' is riding on it. Balance must be restored. We can no longer tolerate an ''imperial judiciary.'' The people will not stand for it and neither should we.
I appreciate this subcommittee having the courage and foresight to begin this process.
Mr. COBLE. I thank the gentleman and, as I said, I failed to say this earlier, but you all know your complete testimony will be entered into the record.
I thank the gentleman.
The gentlelady from New York.
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STATEMENT OF HON. NITA LOWEY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK
Ms. LOWEY. I thank you, Mr. Chairman and members of the subcommittee. I'm pleased to participate in this hearing on judicial misconduct and discipline.
Mr. Chairman, complaining about court cases when we dislike the result is a tradition as old as the Republic itself. In fact, in 1803, when the Supreme Court decided the case Marbury v. Madison, recognizing that the Constitution gave courts the power of judicial review, more than one Member of Congress expressed displeasure at the notion that a court could review any legislative activity at all. In fact, in some quarters it was even suggested that troops be deployed to compel the Court to recant.
Thankfully, cooler heads prevailed. Most of us have come to agree with Chief Justice of the Supreme Court, William Rehnquist, who has said, and I quote: ''There are a very few essentials that are vital to the functioning of the Federal court system as we know it. Surely one of these essentials is the independence of the judges who sit on these courts.''
That is why I am so concerned that members of the GOP leadership here in the House are threatening to impeach judges whose rulings or opinions they dislike. And, at the same time, Republicans in the Senate continue to hold up confirmation of President Clinton's judicial appointments. These reckless and extreme actions threaten to undermine, in my judgment, the constitutional underpinnings that have sustained our great democracy since its founding.
Page 19 PREV PAGE TOP OF DOC The primary accusation against these judges has been ''judicial activism.'' But in this Congress, ''judicial activism'' is in the eye of the beholder. Quite frankly, the complaints about individual judges seem motivated more by pure politics than by judicial philosophy.
For example, I find it fascinating that there has been no mention of a notorious case of judicial activism in my home State of New York. On January 10, U.S. District Court Judge John E. Sprizzo dismissed a contempt order that he himself had issued against two defendants for repeatedly protesting in front of abortion clinics in violation of the freedom of access to clinic entrances. I and many other Members of Congress worked very hard to pass the Freedom of Access to Clinic Entrances Act.
But Judge Sprizzo, a Reagan appointee, wrote in his opinion that the two men in question lacked the required ''willfulness'' to commit the crime because they acted out of their religious convictions. He went on to write that he was exercising ''the prerogative of leniency'' and that he could ''refuse to convict a defendant, even if the circumstances would otherwise be sufficient to convict.''
I was shocked by Judge Sprizzo's opinion. It is not a judge's role to weave a moral code for how and when a law should be applied. Those of us who fought hard for the protection of the Freedom of Access to Clinics Act fear that Judge Sprizzo's decision will embolden protesters and lead to more tragedy and violence. And the ruling shows a callous disregard for the rule of law when lives and liberties are at stake.
Yet, despite my outrage at Judge Sprizzo's decision, I am not calling for his impeachment. I have watched with growing discomfort as my Republican colleagues attack individual judges for individual rulings. I understand the frustration of watching a judge rule differently than we might like. But our respect for the separation of powers and the rule of law must mean that partisan bickering has no place in our relationship with the judicial branch of government.
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In a democracy, to politicize the judiciary this way, in my judgment, is poisonous and ugly. I would urge my colleagues to respect the separation of powers enshrined by the Founders and stop these attempts to intimidate the judiciary. Thank you very much.
[The prepared statement of Ms. Lowey follows:]
PREPARED STATEMENT OF HON. NITA M. LOWEY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK
Thank you Mr. Chairman and members of the Subcommittee.
I am pleased to participate in this hearing on judicial misconduct and discipline.
Complaining about court cases when we dislike the result is a tradition as old as the republic itself.
In 1803, when to supreme court decided the case Marbury v. Madison recognizing that the Constitution gave courts the power of judicial review, more than one Member of Congress expressed displeasure at the notion that a court could review any legislative activity at all. In fact, in some quarters it was even suggested that troops be deployed to compel the court to recant.
Thankfully, cooler heads prevailed. Most of us have come to agree with Chief Justice of the Supreme Court William Rehnquist, who has said, ''There are a very few essentials that are vital to the functioning of the Federal court system as we know it. Surely one of these essentials is the independence of the judges who sit on these courts.''
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That is why I am so concerned that members of low GOP leadership here in the House are threatening to impeach judges whose rulings or opinions they dislike. And, at the same time, Republicans in the Senate continue to hold up confirmation of President Clinton's judicial appointments. These reckless and extreme actions threaten to undermine the constitutional underpinnings that have sustained our great democracy since its founding.
The primary accusation against these judges has been ''judicial activism.'' But in this Congress, ''judicial activism'' is in the eye of the beholder. Quite frankly, the complaints about individual judges seem motivated more by pure politics than by judicial philosophy.
For example, I find it fascinating that there has been no mention of a notorious case of judicial activism in my home State of New York.
On January 10th, U.S. District Court Judge John E. Sprizzo dismissed a contempt order that he himself had issued against two defendants for repeatedly protesting in front of abortion clinics in violation of the Freedom of Access to Clinic Entrances. I and many others Members of Congress worked very hard to pass the freedom of access to clinic entrances act.
But Judge Sprizzo, a Reagan appointee, wrote in his opinion that the two men in question lacked the required ''willfulness'' to commit the crime because they acted out of their religious convictions. He went on to write that he was exercising ''the prerogative of leniency'' and that he could ''refuse to convict a defendant, even if the circumstances would otherwise be sufficient to convict.''
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I was shocked by Judge Sprizzo's opinion. It is not a judge's role to weave a moral code for how and when a law should be applied. Those of us who fought hard for the protection of the Freedom of Access to Clinics Act fear that Judge Sprizzo's decision will embolden protesters and lead to more tragedy and violence. This ruling shows a callous disregard for the rule of law when lives and liberties are at stake.
Yet despite my outrage at Judge Sprizzo's decision, I am not calling for his impeachment. I have watched, with growing discomfort, as my Republican colleagues attack individual judges for individual rulings.
I understand the frustration of watching a judge rule differently than we might like. But our respect for to separation of powers and the rule of law must mean that partisan bickering has no place in our relationship with the judicial branch of government.
In a democracy, to politicize the judiciary this way is poisonous and ugly. I would urge my colleagues to respect the separation of powers enshrined by to Founders and stop these attempts to intimidate the judiciary. Thank you.
Mr. COBLE. Mr. Hostettler, the pressure is on you because the gentleman from Georgia and the lady from New York complied with the 5-minute rule, so pressure is on you.
STATEMENT OF HON. JOHN N. HOSTETTLER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF INDIANA
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Mr. HOSTETTLER. I appreciate that, Mr. Chairman. I am not an attorney, so I am going to readtry to read through most of my testimony because I think the voices of the past speak much more eloquently about this issue than I could.
Mr. COBLE. That would be fine.
Mr. HOSTETTLER. But as the Baron de Montesquieu once said that, ''society notwithstanding, all its revolutions must repose on principles that do not change.'' So I think their voices and their words are appropriate to us today.
I appreciate your allowing me to share with the subcommittee some of my thoughts on judicial misconduct. When we speak of such misconduct, I believe that it is helpful if we distinguish between two different types. First to consider is judicial misconduct which is the result of improper motives; for example, those decisions and actions which arise from corruption, such as bribery or fraud.
A second form of judicial misconduct arises from those judicial actions which are wrongful not because of the judge's motivations, but because of a lack of merit in his decisionsuch as a judge's clear misinterpretation of the Constitution or a judge's legislating from the bench.
Many able colleagues have done justice and will do justice to the doctrine of impeachment which I believe to be best suited to deal with corruptions in the judiciary. In contrast, I would like to focus your attention today on the fact that we, in our capacity as members of the legislative branch, are already empowered by the Constitution to curb judicial misconduct as it pertains to the substance of wrongful judicial opinions.
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It is interesting to me that there is today such aweindeed, almost reverencefor the pronouncements of the judiciary. Their opinions are held by many to be unchallengeable, almost divine. When a court declares, for example, that Congress does not have the power to ban pornography in its military commissaries, it is as if God himself has spoken.
I believe that the present practice of the legislative branch bowing to judicial supremacy does not square with the U.S. Constitution or its history. In order to illustrate this, I would like to share with you a sampling of the views of prominent Americans on the notion of judicial supremacy.
Take, for example, Alexander Hamilton, who in the Federalist Papers argued that the Court should not be feared since the Supreme Court has a ''total incapacity to support its usurpations by force.'' Or Chief Justice Marshall, who just 2 years after the famous Marbury decision noted the desirability of the legislature to interpose a substantive check on the Supreme Court's interpretations.
In an 1805 letter to Justice Samuel Chase, who was then facing impeachment proceedings as a result of his disagreements with President Jefferson, Chief Justice Marshall wrote that ''a reversal of those legal opinions deemed unsound by the legislature would certainly better comport with the mildness of our character than a removal of the judge who has rendered them unknowing of his fault.''
I should mention that so shocked was Marshall's biographer, Albert Beveridge, that he made the following comments: ''Marshall thus suggested the most radical method for correcting judicial decisions ever advanced, before or since, by any man of the first class. Had we not evidence of Marshall's signature to a letter written in his well-known hand, it could not be credited that he ever entertained such sentiments.''
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I might also add, at this point, that I do not find fault with Justice Marshall's decision in the Marbury v. Madison decision. I do, however, believe that while the Justice correctly recognized judicial review, he has wrongly been construed to support judicial supremacy. I should also note that President Jefferson ignored the interpretations of the court in the decision Marbury v. Madison.
Speaking of Thomas Jefferson, in 1820 he put his rejection of the doctrine of judicial supremacy very clearly: ''To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. And their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal.''
Or take President Jackson's veto message regarding the creation of the Bank of the United States on July 10, 1832, and I quote: ''Each public officer who takes an oath to support the Constitution swears that he or she will support it as he understands it and not as it is understood by others. The opinion of the judges has no more authority over the Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive.''
Or take Joseph Story, a Justice appointed to the Supreme Court in 1811 and who served for 34 years. Justice Storyand I apologize for beating a dead horse here, but it is importantwrote the following concerning the power of Congress in his ''Commentaries on the Constitution,'' and I have several quotes. I will simply conclude, Mr. Chairman, as I do not have time to read the rest of the samplethe rest of the testimonythat, indeed, we in the Congress, the legislature, have the ability to check the power of the judiciary and that the testimony further on demonstrates that, and that we in Congress must act in concert with the executive branch to make sure that judicial supremacy does not create a tribunal whereby elected representatives, elected by the people, cannot exercise our constitutional obligations.
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[The prepared statement of Mr. Hostettler follows:]
PREPARED STATEMENT OF HON. JOHN N. HOSTETTLER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF INDIANA
Mr. Chairman, I appreciate your allowing me to share with the Subcommittee some of my thoughts on judicial misconduct.
When we speak of such misconduct, I believe that it is helpful if we distinguish between two different types: First to consider is judicial misconduct which is the result of improper motives, such as those decisions and actions which arise from corruption, e.g., bribery or fraud. A second form of judicial misconduct arises from those judicial actions which are wrongful not because of the judge's motivation, but because of the lack of merit in the decisionsuch as a judge's clear misinterpretation of the Constitution or a judge's legislating from the bench.
Many able colleagues have done justice to the doctrine of impeachment, which I believe to be best suited to deal with corruption in the judiciary. In contrast, I would like to focus our attention today on the fact that we, in our capacity as members of the legislative branch, are already empowered by the Constitution to curb judicial misconduct as it pertains to the substance of wrongful judicial opinions.
Page 27 PREV PAGE TOP OF DOC It is interesting to me that there is today such aweindeed almost reverencefor the pronouncements of the judiciary. Their opinions are held by many to be unchallengeable, almost divine. When a court declares, for example, that Congress does not have the power to ban pornography in its military commissaries, it is as if God himself has spoken.
I believe that the present practice of the legislative branch bowing to judicial supremacy does not square with the United State's Constitution, or its history. In order to illustrate this, I would like to share with you a sampling of the views of prominent Americans on the notion of judicial supremacy:
Take for example Alexander Hamilton, who in the Federalist Papers argued that the Court should not be feared, since the Supreme Court has a total incapacity to support its usurpations by force.(see footnote 1)
Or Chief Justice John Marshall, who, just two years after the famous Marbury decision, noted the desirability of the legislature to interpose a substantive check on the Supreme Court's interpretations.
In an 1805 letter to Justice Samuel Chase, who was then facing impeachment proceedings as a result of his disagreements with President Jefferson, Chief Justice Marshall wrote that:
A reversal of those legal opinions deemed unsound by the legislature would certainly better comport with the mildness of our character than a removal of the Judge who has rendered them unknowing of his fault.(see footnote 2)
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I should mention that so shocked was Marshall's biographer, Albert Beveridge, that he made the following comments:
Marshall thus suggested the most radical method for correcting judicial decisions ever advanced, before or since, by any man of the first class.... Had we not evidence of Marshall's signature to a letter written in his well-known hand, it could not be credited that he ever entertained such sentiments.(see footnote 3)
I might also add at this point that I do not find fault with Justice Marshall's decision in the Marbury v. Madison decision. I do, however, believe that while the Justice correctly recognized judicial review, he has wrongly been construed to support judicial supremacy. I should also note that President Jefferson ignored the interpretations of the Court in that decision.
Speaking of Thomas Jefferson, in 1820 he put his rejection of the doctrine of judicial supremacy very clearly:
[T]o consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... [A]nd their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The constitution has erected no such single tribunal.(see footnote 4)
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Or take President Jackson's veto message regarding the creation of the Bank of the United States on July 10, 1832:
Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others.... The opinion of the judges has no more authority over the Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive.(see footnote 5)
Or take Joseph Story, a Justice appointed to the Supreme Court in 1811 and who served for 34 years. Justice Storyand I apologize for beating a dead horse here, but it is importantwrote the following concerning the power of Congress in his Commentaries on the Constitution:
In the first place, the people, by the exercise of the elective franchise, can easily check and remedy any dangerous, palpable, and deliberate infraction of the constitution in two of the great departments of government; and, in the third department, they can remove the judges, by impeachment, for any corrupt conspiracies.... And if the judicial department alone should attempt any usurpation, congress, in its legislative capacity, has full power to abrogate the injurious effects of such a decision. [Emphasis added.](see footnote 6)
* * * * *
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On the other hand, the worst, that could happen from a wrong decision of the judicial department, would be, that it might require the interposition of congress, or, in the last resort, of the amendatory power of the states, to redress the grievance.(see footnote 7)
* * * * *
[I]f the usurpation [of the Constitution] should be by the judiciary, and arise from corrupt motives, the power of impeachment would remove the offenders; and in most other cases the legislative and executive authorities could interpose an efficient barrier. A declaratory or prohibitory law would, in many cases, be a complete remedy. [Emphasis added.](see footnote 8)
Or take President Lincoln and his reaction to the Supreme Court's Dred Scott v. Sanford decision of 1857.
In Dred Scott, the Supreme Court had declared that the Constitution did not allow for the prohibition of slavery by the federal government and declared the Missouri Compromise of 1850 to be unconstitutional. Thereafter, in 1862, President Lincoln, as head of the Executive branch, issued the Emancipation Proclamation in disregard of the Supreme Court's interpretation of the Constitution. In other words, if President Lincoln had believed in judicial supremacy, he could not have freed the slaves.
It should be mentioned that in regard to the Dred Scott decision, Congress also rejected the supremacy of the Supreme Court, when on June 19, 1862, it passed an Act prohibiting the extension of slavery into the territories after the Supreme Court had said that this action was unconstitutional.(see footnote 9)
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Congress has acted at other times in disregard for judicial supremacy. Child labor laws in the early part of this century, women's rights to practice before the Supreme Court, andmost recentlythe Religious Freedom Restoration Act, all were passed despite the contrary opinion of the Supreme Court.
I do not challenge the right to judicial review. The Court makes a valuable contribution to the understanding of our nation's laws, and, of course, it is essential in the resolution of disputes between litigants. However, I do challenge the notion of judicial supremacy. In the end, if the judiciary is misbehaving substantivelyit is because we have let them.
If judicial supremacy is without constitutional support, we can ask why does the doctrine persist? I contend that judicial supremacy can be a convenient doctrine for the legislative branch. It can be politically expedient to place the great policy decisions of our times in the hands of an unelected elite rather than to be held accountable to the voters back home. Nevertheless, it is time to put the doctrine of judicial supremacy to rest.
We all take oaths to uphold the Constitution. Where the legislative branch disagrees with a statutory construction of the Supreme Court, we must make haste to correct the wrong.
If it be a Constitutional error, we must first do what we can to negate the impact. Where the Court's opinion is truly an egregious constitutional error, we must refuse to allow the Executive branch to carry out the Court's orders. In such a case, the People will ultimately decide the issue in the next election when they face the opposing views.
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This, my colleagues, is the paramount issue. Is it the People's Constitution? Is it the People's government? Perhaps President Lincoln summed it up best in his first inaugural address:
I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court.... At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole of the people is to be irrevocably fixed by decisions of the Supreme Court ... the people will have ceased to be their own rulers, having ... resigned their Government into the hands of that eminent tribunal.(see footnote 10)
No my Colleagues, we must never resign our governmentthat government of the People, by the People and for the Peoplein the hands of the Supreme Court or any lower court.
Thank you again for allowing me to come before you.
Mr. COBLE. I thank the gentleman.
Mr. DeLay, I think you are on a short leash, are you not?
Mr. DELAY. I'm sorry, Mr. Chairman. I am.
Mr. COBLE. The gentleman from Massachusetts will comply, will recognize
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Mr. DELAHUNT. I anticipate that his schedule is far busier than mine, Mr. Chairman. I would be happy to defer
Mr. COBLE. We're glad to have the whip with us. The gentleman from Texas, Mr. DeLay.
STATEMENT OF HON. TOM DE LAY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Mr. DELAY. Well, thank you, Mr. Chairman. I appreciate the indulgence of this panel and my schedule is not more important than the gentleman from Massachusetts' schedule, but we're trying to pass a supplemental
Mr. FRANK. But, let me say to the gentleman, your schedule depends on the rest of us being able to get home for the weekend, so we refer to you gladly. [Laughter.]
Mr. DELAY. Well, the faster we can get to it, the faster we can get home. Thank you, Mr. Frank.
And I will try to summarize as much as I can my testimony, Mr. Chairman. I would want to thank you for allowing me to testify here today. I come before this committee with a simple proposition. The system of checks and balances so carefully crafted by our Founding Fathers is in serious disrepair, in my opinion, and this Congress, without passing new legislation, has the ability to solve the problem.
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The Founding Fathers established a system of government in the United States that does not allow one branch to become too powerful at the expense of another. Each branch of our Government has specifically enumerated powers that allow them to rein in the other two branches. That's why the Founders gave Congress the power to impeach judges who exceed their constitutional authority.
Contrary to the opinion of some in the legal establishment, judicial power is not limitless. Judicial power does not equal legislative power. Judges apply the law; they do not make the law. When judges go further and unilaterally impose legislative remedies, they exceed the legitimate limits of their power.
When judges legislate, they usurp the power of Congress. When judges stray beyond the Constitution, they usurp the power of the people. Chief Justice Charles Evans Hughes was wrong when he claimed that the Constitution is whatever a judge says it is. The Constitution opens with the assertion that the people ordained and established the Constitution. Only the people, acting through their elected representatives, can change the Constitution. America's Founders believed that impeachment could be an effective way of keeping the judiciary within its bounds.
When is impeachment a legitimate tool? Can Congress impeach a public official for noncriminal acts? I think the answer is yes. The category of impeachable offenses is much larger than the category of indictable offenses. Article II of the Constitution states that all Federal civil officers may be impeached for ''treason, bribery or other high crimes and misdemeanors.'' The mistaken assumption is that impeachment requires a statutory crime. That has never been the case.
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While some of the 13 judges impeached during American history committed statutory crimes, others did not. Constitutional scholar, Raoul Berger, has noted that ''judges are not thus removable by election, and their tenure during good behavior indicates that the framers did not intend to shelter those who indulged in disgraceful conduct short of 'great offense'.'' Others have noted that impeachment was devised to remove officials for conduct ''the ordinary magistrates either dare not or cannot punish.''
America's Founders believed that impeachment was a legitimate tool, to be used in cases of extraconstitutional judicial decisionmaking. The Founders even suggested that impeachment could be used as a political tool. Even Alexander Hamilton declared that ''subjects of its impeachment's jurisdiction are of a nature which may with peculiar propriety be denominated political.''
William Rawe confirmed that impeachment was for ''political offenses,'' and Supreme Court Justice Joseph Story declared the same in his famous ''Commentaries of the Constitution.''
I am notand I repeatI am not suggesting that impeachment be used for partisan purposes, but when judges exercise power not delegated to them by the Constitution, I think impeachment is a proper tool. And I submit to the committee that judges who abuse their power, violate their constitutional oath, and breach our Government's separation of powers can be impeached as readily as judges who violate statutory law. Anyone can be impeached that has a majority of the House and removed from office with two-thirds vote from the Senate. Judges who violate the separation of powers damage and discredit our system of government as much as judges guilty of offenses defined in the statute books.
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Judge Pickering, John Pickering, was impeached in 1803 for, among other things, his ''loose morals and intemperate habits.'' That certainly doesn't constitute a misdemeanor or an indictable offense. In addition, none of the articles of impeachment against John Robert Archibald in 1912 were indictable offenses. In fact, the House manager insisted that judge could indeed be impeached for ''entering and enforcement of orders beyond his jurisdiction''in other words, an abuse of judicial power.
And if the system created by America's Founders requires such a restrained judicial role and if the tool of impeachment can clearly be used to check judges who exceed that role, let me further clarify my position with some concrete examples. And I'll go through those examples in the record, Mr. Chairman, but there are several examples. One of the most egregious is oneand I'll just use this one and conclude. It's an example of judicial taxation. Do judges have the authority to raise taxes? Certainly not. And under the Constitution only Congress can ''lay and collect taxes.'' Yet that didn't stop District Court Judge Russell Clark from ordering tax increases from the bench. In 1987, the Federal courts assumed the rights to tax the American people. Judge Clark ordered a tax increase for the Kansas City, MO, school system.
Those kinds of violations, Mr. Chairman, and I have others, and I could go through them one after anotherlet me justand I'd like the record to show that I would have liked to talk about judicial independence because the criticism against my position is the judiciary should remain independent and I'm not sure that those advocates mean that judicial independence, when they insist that even this difficult, rarely-used system of impeachment provided by the Constitution must not be allowed to touch judges. Judges are just as vulnerable as the rest of us to be reprimanded and/or impeached for judicial activism and abuse of their power.
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[The prepared statement of Mr. DeLay follows:]
PREPARED STATEMENT OF HON. TOM DELAY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
I want to thank Judiciary Chairman Hyde and Subcommittee Chairman Coble for allowing me the opportunity to testify today.
I come before the Committee with a simple proposition: the system of checks and balances so carefully crafted by our founding fathers is in serious disrepair. And this Congress, without passing new legislation, has the ability to solve the problem.
The founding fathers established a system of government in the United States that does not allow one branch to become too powerful at the expense of another.
Each branch of our government has specifically enumerated powers that allow them to reign in the other two branches. That is why the founders gave Congress the power to impeach judges who exceed their constitutional authority.
Contrary to the opinion of the liberal legal establishment, judicial power is not limitless. Judicial power does not equal legislative power. Judges apply the law, they do not make the law. When judges go further, and unilaterally impose legislative remedies, they exceed the legitimate limits of their power.
When judges legislate, they usurp the power of Congress. When judges stray beyond the Constitution, they usurp the power of the people.
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Chief Justice Charles Evans Hughes was wrong when he claimed that the Constitution is whatever a judge says it is. The Constitution opens with the assertion that the people ordained and established the Constitution.
Only the people, acting through their elected representatives, can change the Constitution. America's founders believed that impeachment would be an effective way of keeping the judiciary within its proper bounds.
When is impeachment a legitimate tool? Can Congress impeach a public official for non-criminal acts? The answer is yes. The category of impeachable offenses is much larger than the category of indictable offenses.
Article II of the Constitution states that all federal civil officers may be impeached for ''treason, bribery or other high crimes and misdemeanors.'' The mistaken assumption is that impeachment requires a statutory crime. That has never been the case.
While some of the 13 judges impeached during American history committed statutory crimes, others did not. Constitutional scholar Raoul Berger has noted that ''Judges are not thus removable [by election]; and their tenure 'during good behavior' indicates that the Framers did not intend to shelter those who indulged in disgraceful conduct short of 'great offenses.' ''
Others have noted that impeachment was devised to remove officials for conduct ''the ordinary magistrates either dare not or cannot punish.''
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America's founders believed that impeachment was a legitimate tool, to be used in cases of extra-constitutional judicial decision-making. The founders even suggested that impeachment could be used as a political tool.
Alexander Hamilton declared: ''The subjects of its [impeachment's] jurisdiction are ... of a nature which may with peculiar propriety be denominated political.'' William Rawle confirmed that impeachment was for ''political offenses'' and Supreme Court Justice Joseph Story declared the same in his famous Commentaries on the Constitution.
I am not suggesting that impeachment be used for partisan purposes, but when judges exercise power not delegated to them by the Constitution, impeachment is a proper tool.
I submit to the Committee that judges who abuse their power, violate their constitutional oath and breach our government's separation of powers can be impeached as readily as judges who violate statutory criminal law. Judges who violate the separation of powers damage and discredit our system of government as much as judges guilty of offenses defined in the statute books.
Judge John Pickering was impeached in 1803 for, among other things, his ''loose morals and intemperate habits.'' That certainly does not constitute a misdemeanor or indictable offense.
In addition, none of the articles of impeachment against Judge Robert Archibald in 1912 were indictable offenses. In fact, the House manager insisted that a judge could indeed be impeached for ''entering and enforcement of orders beyond his jurisdiction''in other words, an abuse of judicial power.
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If the system created by America's founders requires such a restrained judicial role, and if the tool of impeachment can clearly be used to check judges who exceed that role, let me further clarify my position with some concrete contemporary examples.
This is important because those who defend unlimited judicial power have said in speeches and the media that I simply want to attack judges who render individual decisions I disagree with. I have never advocated that view. My concern has always been related to judges who exceed their constitutional authority.
EXAMPLES OF JUDICIAL IMPERIALISM
Judicial Taxation: Do judges have the authority to raise taxes? Of course not.
Under the Constitution, only Congress can ''lay and collect taxes.'' Our Founding Fathers would be appalled at the thought of federal judges doing so. In Federalist No. 48, James Madison explained that in our democratic system, ''the legislative branch alone has access to the pockets of the people.''
But that didn't stop District Judge Russell Clark from ordering tax increases from the bench. In 1987, the federal courts assumed the right to tax the American people. Judge Clark ordered a tax increase for the Kansas City, Missouri, school system.
The decreeand two billion tax dollarsturned the city's school district into a spending orgy complete with editing and animation labs, greenhouses, temperature-controlled art galleries, and a model United Nations wired for language translation.
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There is a name for tax increases imposed by appointed, life-tenured federal judges: taxation without representation.
When a judge orders a tax increase, he has clearly violated the separation of powers embodied in the Constitution.
California Rights Initiative: Another example of a judge tossing aside the Constitution and supplanting his own personal biases was the decision by District Court Judge Thelton Henderson prohibiting the state of California from implementing the ''California Civil Rights Initiative (CCRI).''
CCRI simply removed the opportunity for state officials to judge people by their race or sexa practice most Americans consider repugnant.
In a ruling that turned common sense and our Constitution on it's head, Judge Henderson ruled that by adopting the Equal Protection Clause of the Fourteenth Amendment, the voters of the State had violated the Fourteenth Amendment.
Mr. Chairman, we all recognize that a law which parallels the Fourteenth Amendment and Title VII of the 1964 Civil Rights Act, and which forbids discrimination, is hardly unconstitutional. Only a judge who chooses to willfully ignore the Constitution could arrive at such a conclusion.
Although judicial taxation and Judge Henderson's circumvention of the Constitution are two extreme examples of judge's breaching the separation of powers, there are, of course, others:
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Judges have created a right to die; judges have prohibited states from declaring English an official language; judges have suspended the right of states to withhold taxpayer funded services from illegal aliens all without sound constitutional basis.
There is a difference between interpretation and creation, and in each one of these cases judges have gone beyond their authority to interpret and have created law.
Finally, let me address the mantra of ''judicial independence'' chanted by those who actually want unlimited judicial power. Rather than threatening judicial independence, impeachment properly applied is a tool for keeping judicial power in check so the judiciary can in fact be properly independent.
House impeachment and Senate conviction is a cumbersome process, a high legislative barrier to cross. An easier removal mechanism may have threatened judicial independence, but the one established by America's founders certainly does not.
I am not sure what some advocates mean by judicial independence when they insist that even this difficult and rarely used system provided by the Constitution must not be allowed to touch judges.
If a system allows a corrupt or incompetent judge, or a judge who abuses his power and exceeds his constitutional authority, to remain untouchable, the public may lose confidence in the judiciary and will certainly lose the power to govern themselves.
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In short, the Constitution provides for the impeachment of civil officers including federal judges. Impeachment has always been a mechanism available to address actions by public officials that go beyond technically indictable criminal offenses.
Those actions include judicial decrees that exceed the constitutionally prescribed power of the judicial branch and encroach on the power of the legislative branch.
Today, some judges feel free to ignore the Constitution precisely because Congress has not used the tools at its disposal to check extra-Constitutional judicial activism.
Using the tools established by America's founders to keep our system of separated powers truly separate and truly balanced cannot, by definition, threaten judicial independence but, rather, guarantees it. When Congress fulfills its constitutional role, the inherent power of the people to govern themselves is more secure and, therefore, their liberty is assured.
Mr. Chairman, the time has come for Congress to consider impeachment proceedings against judges who violate their constitutional role and breach our separation of powers.
I want to thank you again for the opportunity to testify before the Committee. At stake is nothing less than the integrity of our Constitution and the future of our nation.
Page 44 PREV PAGE TOP OF DOC Mr. COBLE. Well, Mr. Whip, before you came and joined us, I made it clear about some phone calls I have received admonishing us for having these hearings on the one hand; on the other hand, encouragingwe weren't going far enough. And I made it clear yesterday that the purpose of these hearings is not to dismantle the rule of law. And I think the gentleman from Michigan said he took great comfort in that. I'm not sure whether he said that with tongue-in-cheek or not, but, nonetheless, that is not the purpose. I see nothing wrong with examining it. I appreciate your being with us.
The gentleman from Massachusetts.
Mr. DELAHUNT. Yes. Thank you, Mr. Chairman. And Mel Watt was correct; you look much more formidable from this side of the dais
Mr. COBLE. Pardon me, Bill. Mr. Whip, you may be excused so that you can go to another meeting.
Mr. DELAY. And I'm sorry. I would like to stay for questioning.
Mr. FRANK. Yes, now that justice has already been delayed, we needn't keep you here any further. [Laughter.]
Mr. COBLE. The gentleman from Massachusetts.
STATEMENT OF HON. WILLIAM D. DELAHUNT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MASSACHUSETTS
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Mr. DELAHUNT. Yes, thank you, Mr. Coble. What brings us here this morning is a very old argument about the proper role of the judicial branch in our system of government. That argument goes back at least as far as the debate over the Constitution and the impeachment of Justice Chase in 1805. I'm confident that we will not settle the matter today. But these hearings will have achieved something if they help us move beyond the rhetorical excesses of recent months and place the issues in some kind of historical perspective.
Perhaps we could begin by stipulating that whatever ''judicial activism'' is, whether it's a good or bad thing, it's nothing new. And it is the exclusive property of neither liberals nor conservatives. Early in this century, a conservative Supreme Court used ''substantive due process'' and ''liberty of contract'' to strike down progressive social legislation such as child labor laws and the minimum wage. Decades later a liberal Court found a right of privacy in the Constitution and ordered an end to segregated schools. In each instance, the reaction was fierce: in the thirties, President Roosevelt tried to pack the Court; and in the fifties, social conservatives launched a campaign to impeach Chief Justice Warren.
What is interesting about the current campaign against ''activist'' judges is that today many of those activist judges are conservatives who take an extremely narrow view of the scope of congressional authority under the commerce clause and an equally broad view of the powers reserved to the States under the 10th amendment. Those conservatives who recognize this have been slow to enlist in the crusade. Clint Bolick, for example, has wondered aloud how Justice Scalia would survive if activism were grounds for impeachment.
Personally, I'm less interested in bumper sticker slogans like ''judicial activism'' than in trying to reach an understanding as to what judges ought to do. Archibald Cox has written that the judge's duty is to make decisions ''according to law.'' The judge must be guided by ''a continuity of reasoned principle found in the words of the Constitution, statute, or other controlling instrument, in the implications of its structure and apparent purposes, and in prior judicial precedents, traditional understanding, and like sources of law.''
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In my experience, that is precisely what most judges do. They carefully consider the case before them, deciding only those questions necessary to resolve the matter at hand. But judges are human beings and they do not always get it right. Fortunately, there are institutional safeguards that help the system correct itself. That is what appeals and appellate courts are for. And when all else fails, that is what we are for.
Judges do make mistakes. But the fact that one disagrees with a decision does not make it judicial misconduct. For cases of genuine misconduct there are ample remedies available. Complaints filed with the court of appeals can lead to discipline or removal. Last year alone, 529 complaints were filed, of which 138 are still pending.
In 1990, Congress created the bipartisan National Commission on Judicial Discipline and Removal to assess how the system was working. The Commission submitted its final report in August 1993. I would have thought, Mr. Chairman, that we would want to have the benefit of the Commission's findings before conducting a hearing on ''judicial misconduct and discipline.'' Perhaps we haven't asked the commissioners here today because ''misconduct'' isn't really what this hearing is about.
I do not want to suggest that Members of Congress should refrain from criticizing judicial decisions. On the contrary, fair criticism plays an important role in improving the quality of the courts. But I'm very troubled by the tone of the criticism we are hearing from some of our colleagues and by the effect that it is having on the judicial process itself.
Page 47 PREV PAGE TOP OF DOC There's a significant difference between reasonable criticism and irresponsible attacks that distort the judge's record and focus on the result in a single case, usually without looking at the underlying facts and legal precedents. Most conscientious judges, regardless of their political views, will eventually be confronted with a situation in which the law requires that evidence be thrown out or a death sentence be overturned. Yet a judge who follows the law in such cases is too often labeled ''soft on crime'' and accused of ''letting murderers go free.'' Nor is it helpful for Members of Congress to call for the impeachment of judges with whom they disagree. An independent judiciary is what distinguishes a free society from totalitarianism. It is, in the words of Chief Justice Rehnquist, a ''crown jewel'' of our system of government. We should cherish that jewel, not chip away at it for the sake of short-term political advantage.
I conclude my testimony and thank you, Mr. Chairman.
[The prepared statement of Mr. Delahunt follows:]
PREPARED STATEMENT OF WILLIAM D. DELAHUNT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MASSACHUSETTS
Mr. Chairman and fellow members of the Subcommittee, I appreciate the opportunity to appear as a witness this morning. You all look much more formidable from this end of the telescope.
What brings us here this morning is a very old argument about the proper role of the judicial branch in our system of government. That argument goes back at least as far as the debate over the Constitution and the impeachment of Mr. Justice Chase in 1805.
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We will certainly not settle the matter today. But these hearings will have achieved something if they help us move beyond the rhetorical excesses of recent months and place the issues in some kind of perspective.
Perhaps we could begin by stipulating that whether ''judicial activism'' is a good thing or a bad thing, it is nothing new. And it is the exclusive property of neither liberals nor conservatives.
Early this century, a conservative Supreme Court used ''substantive due process'' and ''liberty of contract'' to strike down progressive social legislation; decades later, a liberal Court found a right of privacy in the Constitution and ordered an end to segregated schools.
In each instance, the reaction was fierce: in the thirties, President Roosevelt tried to pack the Court; in the fifties, social conservatives launched a campaign to impeach Earl Warren.
What is interesting about the current campaign against ''activist'' judges is that today many of them are conservatives who take an extremely narrow view of the scope of Congressional authority under the commerce power and an equally broad view of the powers reserved to the states under the Tenth Amendment. Those conservatives who recognize this have been slow to enlist in the crusade. Clint Bolick, for example, has wondered aloud how Justice Scalia would survive if activism were grounds for impeachment.
Page 49 PREV PAGE TOP OF DOC Personally, I am less interested in bumper sticker slogans like ''judicial activism'' than in trying to reach an understanding as to what judges ought to do. Archibald Cox has written that the judge's duty is to make decisions ''according to law.'' The judge must be guided by ''a continuity of reasoned principle found in the words of the Constitution, statute, or other controlling instrument, in the implications of its structure and apparent purposes, and in prior judicial precedents, traditional understanding, and like sources of law.''
In my experience, that is precisely what most judges do. They carefully consider the case before them, deciding only those questions necessary to resolve the matter at hand. They struggle to ground their decision in legal principle, rather than their personal values or preferences.
But judges are human beings, and they do not always get it right. Fortunately, there are institutional safeguards that help the system correct itself. That is what appeals are for. And when all else fails, that is what we are for.
Judges do make mistakes. But the fact that one disagrees with a decision does not make it judicial misconduct. For cases of genuine misconduct there are ample remedies available under the Judicial Conduct and Disability Act of 1980. Complaints filed with the Court of Appeals can lead to discipline or removal. Last year alone, 529 complaints were filed, of which 138 are still pending.
In 1990, Congress created the bipartisan National Commission on Judicial Discipline and Removal to assess how the system was working. The Commission submitted its final report in August of 1993. I would have thought, Mr. Chairman, that we would want to have the benefit of the Commission's findings before conducting a hearing on ''judicial misconduct and discipline.'' Perhaps we haven't asked the commissioners here today because ''misconduct'' isn't really what this hearing is about.
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I would not want to suggest that Members of Congress should refrain from criticizing judicial decisions. On the contrary: fair criticism plays an important role in improving the quality of the courts. But I am very troubled by the tone of the criticism we are hearing from some of our colleagues, and by the effect this is having on the judicial process itself.
There is a big difference between reasonable criticism and irresponsible attacks that distort the judge's record and focus on the result in a single case usually without looking at the underlying facts and legal precedents. Most conscientious judges, regardless of their political views, will eventually be confronted with a situation in which the law requires that evidence be thrown out or a death sentence be overturned. Yet a judge who follows the law in such cases is labelled ''soft on crime'' and accused of ''letting murderers go free.''
This kind of intimidation has its intended effect. Judge Harold Baer was pilloried by the press and the Presidential candidates of both parties for a case in which he excluded drug evidence seized by the police. A few weeks later, the judge reversed his ruling. We will never know whether he did so because he had genuinely changed his mind or because of the relentless criticism he endured. But the perception will remain that a federal judge was forced to back down under political pressure. That is hardly the way to increase public confidence in the courts.
Nor is it helpful for Members of Congress to call for the impeachment of judges with whom they disagree. An independent judiciary is what distinguishes a free society from a totalitarian one. It is, in the words of Chief Justice Rehnquist, a ''crown jewel'' of our system of government. We should cherish that jewel, not chip away at it for the sake of short-term political advantage.
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Mr. COBLE. I thank the gentleman. That 1993 report about which much has been said, that was received in the 103d Congress, and the committee has had the benefit of that report, Bill, and it's been discussed time and again. Since that report was submitted, however, there have been subsequent complaints forwarded. So I'm sorry the person that mentioned it yesterday is not here. That report has not been ignored. I don't know that a formal response was ever forthcomingprobably wasn't.
Lady and gentlemen, we appreciate you all being with us. We know you're on tight schedules as well. So we will excuse you all and you may remain for the remainder of the hearing, if you'd like, but we appreciate your contributions, and as I said before, your testimony will be entered into the record.
We will call our first panel. By the way, at this juncture let me say to the members of the subcommittee, Mr. Bryant, the gentleman from Tennessee is a member of the full committee, but is not a member of this subcommittee. He has requested permission to sit in on our hearing today and I have given him that permission with you all's consent, and we will permit him to question at the end. And when everyone else is questioning, we'll let you submit your questions, as well.
If the next panel will come forward, I will introduce them as they are coming forward. The next panel consists of Thomas Jipping, Charlotte Stout, Bruce Fein, and Nicki Nichols Gamble.
Ms. Gamble, I did not know about your presence until about 10 minutes ago, but in an effort to accommodate my friend from Massachusetts, we will permit you to sit on this panel. We're in no way attempting to ''stack the deck'' and I see my friend from Tennessee is with us as well. And I'll let you introduce your constituent, John.
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In fact, speaking of that, I think we have very balanced panels yesterday and today. I think we're getting good sides from this controversial issue.
Mr. FRANK. I would agree with you, Mr. Chairman, and I thank you for making sure that that happened.
Mr. COBLE. Thank you, sir.
Mr. CONYERS. Could I compliment you, as well, Mr. Chairman?
Mr. COBLE. I appreciate that. This is almost too good, but I thank you both for that. John, thank you.
Mr. Jipping directs the Judicial Selection Monitoring Project at the Free Congress Foundation. He received his bachelor's degree from Calvin College and master's of law degree from the State University of New York at Buffalo.
Mr. Jipping, I am a Presbyterian. Calvin College has all the trappings of a Presbyterian school, is that correct?
Mr. JIPPING. Yes, it does, sir.
Mr. COBLE. Good to have you with us. John, why don't you introduce your constituent? That's Mr. Tanner from Tennessee.
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STATEMENT OF HON. JOHN S. TANNER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TENNESSEE
Mr. TANNER. Thank you very much, Mr. Chairman and members of the committee. I am privileged this morning to have a friend of mine from Weakley County, TN, who is taking her time to come up here to speak to the committee this morning. And I appreciate the Chair indulging me and letting me submit her testimony and calling on her to testify before you.
I think I understand the difficulty facing the subcommittee in that judicial independence is a cornerstone of our democracy and I appreciate very much the delicate duty that this subcommittee is charged with discharging. I know that you all have heard many times the old saying that ''justice delayed is justice denied.'' Well, Ms. Stout's is a story about justice delayed and also democracy denied. It is not with any particular pleasure, but more a sense of duty that I introduce to the subcommittee this morning a woman who has had the unfortunate circumstance to be a part of democracy denied.
This woman became familiar with a particular Federal district court on February 12, 1992, when the man convicted of a Labor Day 1979 kidnapping, rape, and murder of her little girl, Cary Ann Medlin, filed for a writ of habeas corpus. It took this court almost 5 years to rule on this motion.
Mr. Chairman, this is a story of real people, of a real community, and a very serious grievance. I thank the subcommittee for listening and hearing the testimony of Ms. Charlotte Stout of Greenfield, TN.
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Mr. COBLE. Thank you, Mr. Tanner. And Ms. Stout, for the benefit of the audience and for the subcommittee, let me advise them that you hail from Greenfield, TN. You hold a degree in nursing and you completed your education at the University of Tennessee at Martin. You are currently working as a clinical review/reimbursement specialist with Blue Cross/Blue Shield Tennessee. Good to have you with us.
Mr. Fein, I have read of your good writing and it's good to have you with us. Mr. Fein is a private attorney fromprivate practitioner from McLean, VA. Holds degrees from the University of California at Berkeley and the Harvard School of Law, and Mr. Fein is specializing in constitutional law, international law, trade law and civil rights law, in addition to his prior government service and private practice. Mr. Fein has written extensively for a variety of publications regarding constitutional issues and other legal matters.
Ms. Gamble, I don't have anything on you. Mr. Frank, do you want todoes she
Mr. FRANK. Yes, I canspiritually, not quite technically. Ms. Gamble is the president of the Planned Parenthood League of Massachusetts and has been for a long time a very committed and active citizen in the Commonwealth on a number of issues.
Mr. COBLE. Thank you. Good to have all of you with us. Now, folks, do me a favor, if you will. We have what we down here affectionately call the 5-minute rule. When you see that red light illuminate in your eye, it means Mr. Frank is coming after you. I say that in jest, but we do try to comply with the 5-minute rule because thereand be assured that your complete testimony will be made a part of the record. So even though you may not get to orally testify in toto, what you have prepared will be read. So when you see that red light, if you can wrap up, we will be appreciative to you.
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And why don't we just go fromJohn, why don't we start with you and we'll work from left to right. Ms. Stout.
STATEMENT OF CHARLOTTE ANN STOUT, GREENFIELD, TN
Ms. STOUT. Thank you, sir. Thank you, gentlemen, for allowing me to be here today. I am not here today as an avenging mother. I am not here because a Federal judge overturned one isolated death penalty case. If that were the case, you could discredit me as an emotional extremist and I would be wasting this committee's and my time. I represent almost 27,000 others in Tennessee who are concerned with and perceive a grave miscarriage of justice in Tennessee. The source of our concern is lifetime-appointed Federal Judge John T. Nixon of the Middle Tennessee District.
Judge Nixon has delayed eight counted death penalty cases, a compiled total of 65 years and 7 months, and that figure is very low, a low estimate. He has then overturned 100 percent of all death penalty cases on which he has reached a final decision. If our concern stemmed from one isolated decision, then I would also call attention to Judge Morton of the Middle Tennessee District who also overturned a death penalty case.
Our concern stems from several reasons, not just Judge Nixon's decisions. We are concerned about inordinate delays on death penalty cases in his court. We are concerned because of his misconduct in office by accepting an award from a group who has a previously-stated controversial point of view on a legal issue. We are concerned with the amount of financial reimbursement he has authorized in capital cases. We are concerned that since the reinstatement of capital punishment in Tennessee in 1977, Judge Nixon received almost 100 percent of the cases prior to 1990. He did not transfer the cases back to the district of origin, nor did he recuse himself from hearing these cases.
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And, finally, we are concerned about the system for filing judicial complaints. Twelve complaints were officially filed by citizens against Judge Nixon in the sixth circuit court. These were reviewed by a judge who is his peer, his social acquaintance, and his school chum from Vanderbilt.
From the Governor and past Governor to the blue-collar workers from east Tennessee to west Tennessee, thousands believe that Judge Nixon is opposed to capital punishment and is allowing his personal conviction to obstruct the law in the State of Tennessee. Tennessee Senate resolution has been proposed and passed on Tuesday by Senator Tommy Burksit was passed in the Tennessee Senate Judiciary Committee on Tuesday afternoon by seven lawyers out of nine membersproposed by Tommy Burks which is a resolution memorializing the U.S. Congress to initiate impeachment proceedings against U.S. District Judge John T. Nixon.
We believe Judge Nixon, who is appointed for a lifetime term, will continue to overturn death penalty convictions and order new trials if he is allowed to continue in his historic path. I cannot begin to elaborate on the number of newspaper editorials, TV news segments, and public commentaries that have been expressed against this judge. A Federal judge who's appointed for life is holding the citizens of Tennessee ''hostage'' to his personal convictions. He does have the right to his personal convictions and no one disputes that. But when these beliefs interfere with the administration of justice and the performance of this duties as an officer of the court, he should be removedor, at the very least, restrained.
Capital punishment has been ruled to be constitutionally appropriate. It shouldn't even be the issue. How, then, can one individual be allowed to hold his beliefs above the law because he's a Federal judge? He is frustrating the entire legal system in our State. To what purpose do our law enforcement officers, prosecuting attorneys, judges, and courts spend countless hours and taxpayer dollars to bring criminals to swift and sound justice? How can due process be served when delays of 10 years exist in one court? A fair trial after two decades will be impossible for any of these cases. What a tragedy if any one of these men is innocent. What a tragedy if they are guilty and allowed to abuse the system. What a tragedy if a Federal judge is allowed flagrant misconduct in office and our elected representatives refuse to act for the sake of protecting the independence of the judiciary. The Framers of our Constitution surely never intended for one branch of government to act completely independent of the other two branches. If that were the case, there would be no true system of checks and balances.
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We realize that only 13 judges have ever been brought on impeachment charges and only 7 of them have ever been convicted. We realize the grounds for impeachment are complex and the Constitution sets the framework for impeachment and defines impeachable defenses as ''high crimes and misdemeanors,'' but also states that judges who have lifetime appointments must be of ''good behavior.'' Our elected representatives can define the parameters of good behavior.
On April 9, 1996, quoting Chief Justice of the Supreme Court William Rehnquist to the Washington College of Law: ''It would be a mistake to think that just because a certain kind of judicial business has always been conducted in a particular way in the past, it therefore ought to be conducted that way in future.''
We, the people, only have one voiceour elected representatives. Thank you.
[The prepared statement of Ms. Stout follows:]
PREPARED STATEMENT OF CHARLOTTE ANN STOUT, GREENFIELD, TN
To be certain I am in compliance with House rules for nongovernment witnesses: ''Impeach Judge Nixon'' is a group of people in my town who started a campaign to petition Congress for impeachment of Judge Nixon. I am not an official member, but am unofficially associated with that group because of my concerns about Nixon and they have me listed on the Board of Directors. I have brought petitions (with approximately 27,000 signatures), to present to you. I am here as a concerned citizen and representative of those 27,000 but am not here as a spokesperson or lobbyist for that or any group or organization.
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I would like to begin by briefly recounting to you the events of our case. I will not go into lengthy details, lest you conclude I am an ''angry mother'' with a heart set on revenge. That is not my purpose for being here. My daughter was Cary Ann Medlin. On September 1, 1979, she went out to ride her bicycle for a few minutes before dinner. I never saw her alive again. Robert Coe, by his own confession, tricked her into getting into his car. Coe drove approximately two miles from our home and turned onto a deserted country farm road. There he proceeded to brutally rape and sodomize my child. Cary told him that what he was doing was wrong, and that Jesus loved him. Coe became so enraged with her that he attempted to choke her to death, then stabbed her in the neck with a pocket knife and watched her bleed to death.
Coe was brought to trial in 1981 and sentenced to two life sentences and death by electrocution. His case was appealed in the State system, on multiple occasions, for 11 years. In all those appeals, not one of many Judges found any reason to give Coe a new trial. In 1992, Coe filed his second petition for Habeas Relief in Judge John Nixon's court in the Middle Tennessee District of the 6th Circuit. As predicted, Nixon overturned the conviction and sentence in December of last year. 18 years after my daughter's death, Nixon ordered a new trial. (See Coe Case Summary, Appendix A.)
As I previously stated, I am not here because of one, isolated case. I am not here because of my own isolated opinion. Thousands of Tennesseans, from the Governor (and past Governor) to the ''blue-collar'' workers, from East to West, believe that Judge Nixon is opposed to capital punishment and is allowing his personal convictions to obstruct the law of the State of Tennessee. I have brought petitions today with approximately 27,000 signatures, not only from Tennessee but from across the country. I and they believe that this Federal Judge, who is appointed for a life-time term, will continue to overturn death penalty convictions and order new trials, if he is allowed to continue in his historical path.
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Death penalty cases have been delayed in Nixon's court for years. In the March 1, 1997 report by the Tennessee House Subcommittee on Capital Case Delays, it states,
While the state justice system shares responsibility for delay in Tennessee capital cases, the committee has found that a comparison of the courts indicates that the greatest amount of delay has occurred in the federal court system, particularly the U.S. District Courts in Tennessee. In the 13 cases that made it to Federal District Count for which the committee has complete data, the average number of days spent in the court was 2, 140. Nine of the thirteen cases were heard in the Middle District.
The average case, according to this report, took 5.86 years in the Federal District Court, mainly the Middle District. In a letter to this State Subcommittee, Federal Judge Julia Gibbons states,
Historically in Tennessee, most of those petitions have been filed in the United States District Court for the Middle District Of Tennessee, where death row is located.
Judge Gil Merritt of the 6th Circuit Court of Appeals, testified to this subcommittee and said,
a case spending 5 or more years in the federal court system is unacceptable.
Since the reinstatement of capital punishment in 1977 in the State of Tennessee, there has not been one execution. Judge Nixon has been assigned at least nine out of 18 cases that have made it to the Federal system. He has overturned all five of the cases on which he has held hearings. Two cases, possibly three, cases were transferred out of Nixon's court last August after delays of 8 and 10 years. Two others are still pending State remedies. Five to ten years, is the norm in Judge Nixon's court. Those eight cases have amassed a compiled total of 65 years and 7 months of delay. (See Habeas Appeals in Tennessee, Appendix B.) The delays were brought to the attention of the 6th Circuit Court in at least two separate, formal complaints. There were a total of 12 official complaints filed in the 6th Circuit against Judge Nixon. (I have personal knowledge as to the contents of two of those complaints.) In a December 12, 1994 letter to Judge Nixon, Chief Judge Gil Merritt of the 6th Circuit requested an explanation of the delays. Judge Nixon responded to Merritt on February 3, 1995. In one portion it states,
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There was no ''unreasonable delay'' in this case. Any delay was caused by other civil cases then pending on the Court's docket and/or the parties' failure to advance the case without direction of the Court''. (All italics and emphasis in this document are mine.)
In another section, Nixon states,
In summary, I state that the death penalty habeas corpus cases that have come before me are complex civil cases that have been difficult to move. At no time has there been a pattern of ''persistent and unreasonable delay.'' ... I foresee that these cases will move at the same pace as other civil litigation before this court.
Nixon also stated,
Of course, all of these petitions for writs of habeas corpus are civil cases and the parties through their attorneys have the primary responsibility for moving them forward. A judge can only act when the parties have filed the appropriate pleadings.
In re Blodgett 112 S.Ct. 674, 676 (1992), Supreme Court:
In a capital case the grant of a stay of execution directed to a State by a federal court imposes on that court the concomitant duty to take all steps necessary to ensure a prompt resolution of the matter, consistent with its duty to give full and fair consideration to all of the issues presented in the case.
Page 61 PREV PAGE TOP OF DOC Merritt found that several cases did have excessive delays and should not have occurred, but concluded that fudge Nixon did not violate any statute or canon of judicial ethics or otherwise justify official censure.
Merritt also stated,
Judge Nixon has now taken corrective action, as his response makes clear, to decide promptly the capital cases that remain on his docket.
As I quoted above, Judge Nixon clearly stated in his response that the cases would proceed as all other civil cases in his court.
Quoting from Glen Snow's complaint to the 6th Circuit:
It is my understanding that Criminal Justice Department guidelines recommend hourly rates for attorney compensation in death penalty federal habeas corpus proceedings of between $75 and $125 per hour.... Order number 3:8906626, dated July 28, 199S, signed by Judge Nixon, he authorized a ''reasonable attorney's'' fee of $250 per hour for a total of 485.8 hours in the amount of $121,450.00 plus reimbursement expenses of $1,218.65. This order was to authorize payment to the counsel for attorney of William E. Groseclose....
65 years and 7 months of delays have placed an astronomical financial burden to the taxpayers of Tennessee. We, the people, can only begin to guess at the true financial picture, as the court records are sealed in most cases, by court order.
Quoting from Rebecca Easley's complaint to the 6th Circuit Court:
As a member of the judiciary, Judge Nixon should recognize the perception that citizens have of the bench. His actions, both inside and outside the courtroom, resect upon the institution and are all that many citizens see of the judicial system. On December 17, 1984, during the lunch recess of a case, Judge Nixon accepted an award from the Nashville Conference of Rabbis, Priests and Ministers commending him for staying the execution of convicted murderer Ron Harries. The American Bar Association's committee on Ethics and Professional Responsibility spoke of the impropriety of such an acceptance in informal Opinion 861516 ... the committee's focus begins with whether it would be appropriate for a judge to accept an award from an issues oriented group of lawyers. If it is improper for a judge to accept the award, then it would be improper for an organization of lawyers to offer it. Section B of Canon 2 states that a judge ''should not lend the prestige of his office to advance the private interests of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him.'' Since acceptance of the award could be seen by the public as a possible indication that the judge favors the views of the association giving the award, it would convey an inappropriate image to the public of undue influence, even if untrue, in violation of Canon 2. Section A of Canon 2 mandates that a ''(a) judge should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.''
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In the Nashville Tennessean, October 24, 1978: ''Group Condemns Death Penalty'':
A resolution against the death penalty in Tennessee was made yesterday by the Nashville Association of Rabbis, Priests and Ministers. ''Capital punishment is excessive, morally unacceptable and contrary to the spirit of the Judeo-Christian ethic,'' the organization's resolution said. The group of clergy persons also said: ''Because we uphold the sacredness of human life, we maintain that the death penalty should never be imposed regardless of the circumstances involved.''
In court records on December 26, 1984, Judge Nixon went on open record:
I suppose earlier this afternoon I received a little award from the Nashville Association of Rabbis, Priests and Ministers....
and in answer to Judge Merritt's inquiry:
A small delegation from the Nashville Association of Rabbis, Priests, and Ministers did come to my chambers and give me a single typed page award relating to my handling of the Harries case....
In response to Mrs. Easley's complaint, Judge Merritt determined,
... It was not an award. It was a letter or document of approval from a nonpartisan group which had not previously stated a controversial point of view on political or legal issues.
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As previously quoted, the Nashville Association of Ministers, Priests and Rabbis had, indeed, stated a controversial point of view on a political or legal issue.
It has been noted earlier in this document, that Judge Merritt's inquiry to Nixon was dated December 12, 1994 and Judge Nixon's response was dated February 3, 1995. On January 16, 1995, Mrs. Easley sent a letter to Judge James Higgins, Circuit Executive of the 6th Circuit Court of Appeals. In that letter, Mrs. Easley called attention to the fact that Judge Nixon had recently attended a social gathering at the home of Chief Judge Merritt. She requested that her complaint against Nixon be referred to a committee of judges outside of this district. Judge Merritt responded, in handwriting on that letter:
... As you can see from the portions of the statue marked, the Chief Judge is obligated to act and there is no authority to refer the complaint to a committee of judges outside the district.... Judge Nixon was one of 175 people at my house on January 14th. All of the federal district judges in Middle Tennessee4 judgeswere there. A Chief Judge may not decline to act on a judicial complaint because he knows the judge or has attended social gatherings with him. I know all of the judges in the 6th Circuit, many of them quite well for many years....
It is considered a ''conflict of interest'' for physicians in the same practice to peer review each other. Why then is it appropriate for our highest court officials?
Why were so many (1/2 of all) Habeas appeals in Nixon's court? Why were almost 100% of all death row cases filed in Nixon's court prior to the 1990's? None of the cases was originally tried in Middle Tennessee. Why were they kept there? I have been able to glean at least three possible explanations:
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1. All capital cases were commuted to life sentences before 1977. Nixon was appointed by President Jimmy Carter in 1980. Capital punishment was reinstated in Tennessee in 1977. Therefore, all capital cases were initially assigned to the Middle Tennessee District because that's the location of the prison. (One State legislator has proposed a resolution to move the prison to East Tennessee [to get cases out of Nixon's district].)
2. Nixon claimed in his response to fudge Merritt that he acquired one case by ''random draw.''
3. In Tennessee, the defendant has the right to choose where he wishes the Federal hearing to be tried ... either in the district of the prison or the district where the crime occurred. They all choose Middle Tennessee because they want to be in Nixon's court. In one instance, when Nixon moved a case to the original district, he rescinded his own decision.
In conclusion, I want to express my appreciation for the opportunity to address this subcommittee. I also want to reiterate my original claim. I am not here as an avenging mother. Nothing you say or do will bring back my Cary Ann. We have a serious problem in Tennessee. Nixon's reputation in the State of Tennessee is notorious. I cannot begin to elaborate on the number of newspaper editorials, TV news segments, and public commentaries that have been expressed against Judge Nixon. A Federal Judge, who is appointed for life is holding the citizens ''hostage'' to his conscientious beliefs. He does have the right to his beliefs. But when those beliefs interfere with the administration of justice and the performance of his duties as an officer of the court, he should be removed. Capital punishment has been ruled to be constitutionally appropriate. How then, can one individual be allowed to hold his beliefs above the law? He is frustrating the entire legal system in the State of Tennessee. To what purpose do our law enforcement officers, prosecuting attorneys, Judges and courts spend countless hours and resources to bring criminals to swift and sound justice. And how can due process be served when delays of 10 years exist in one court? A fair trial after two decades will be impossible for any of these cases. What a tragedy if any one of these men are after two decades will be impossible for any of these cases. What a tragedy if any one of these men are innocent. What a tragedy if they are guilty and allowed to abuse the system. What a tragedy if a Federal Judge is allowed flagrant misconduct in office and our elected Representatives refuse to discipline him for the sake of protecting the independence of the judiciary.
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APPENDIX A.COE CASE HISTORY
1. September 1, 1979Cary Ann Medlin murdered.
2. February 26, 1981Robert Coe convicted and sentenced to two life terms for aggravated kidnapping and aggravated rape and death for murder.
3. June 27, 1983Tennessee Supreme Court upheld conviction and sentence.
4. January 9, 1984U.S. Supreme Court denied Petition for Certiorari.
5. March 26, 19841st Post Conviction appeal filed.
6. February 18, 1986petition dismissed by trial judge.
7. December 23, 1986Tennessee Court of Criminal Appeals affirmed trial court's dismissal.
8. February 19, 1987Tennessee Supreme Court refused to accept a late-filed application for appeal.
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9. April 21, 1987petition filed for Habeas Relief in Federal Judge John Nixon's court.
10. April 22, 1987stay of execution granted by Judge Nixon and Federal public defender appointed
11. February 9, 1989Nixon dismissed the case without prejudice for failure to exhaust state remedies.
12. May 4, 1989filed second petition for Post Conviction relief.
13. November 21, 1989trial judge again dismissed the petition.
14. January 16, 1991Tennessee Court of Criminal Appeals again affirmed the trial court decision.
15. November 12, 1991Tennessee Supreme Court denied Coe's application for permission to appeal.
16. February 19, 1992second petition for Writ of Habeas in Judge John Nixon's court.
Page 67 PREV PAGE TOP OF DOC 17. February 21, 1995filed third appeal for Post Conviction relief.
18. January 3, 1996trial court dismissed without a hearing.
19. April 22, 1996hearing in Judge John Nixon's court.
20. December 8, 1996Judge Nixon overturned the conviction and sentence and ordered a new trial (A).
21. December 17, 1996Tennessee Attorney General filed Appeal to 6th Circuit Court.
22. December 20, 1997Coe filed motion for Amended Decision in Judge Nixon's Court.
23. February 4, 19973rd Post Conviction Hearing in Tennessee Court of Criminal Appeals.
24. March 4, 1997Court of Criminal Appeals affirmed judgment of the trial court (B).
25. March 1997Nixon denied Coe's motion for Amended Decision.
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26. March 28, 19976th Circuit Court issued Scheduling Order for appeal.
INSERT OFFSET RING FOLIOS 1 TO 2 HERE
Mr. COBLE. Thank you, Ms. Stout, for your testimony.
STATEMENT OF BRUCE FEIN, McLEAN, VA
Mr. FEIN. Thank you, Mr. Chairman and members of the committee. I'm grateful for this opportunity to testify on what I think is a very pivotal issue to our constitutional system.
Let's think about 1937, a year coming on the heals of Franklin Roosevelt's landslide victory, which he campaigned by railing against what in modern-day terms would be styled an ''activist judiciary,'' overturning the National Recovery Act as illegal and upsetting much New Deal legislation. He unfolded a plan in 1937 which he insisted wasn't designed to sanction or circumvent the decisions of the majority. He called ithe didn't callstyled it a ''Court-packing'' plan, but that's what it became known as. He said this was a plan designed to force aging judges who couldn't do their work on time to retire. Or if they didn't, they could be replaced by new blood, new New Dealers.
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Of course, the charge that he made was preposterous. And indeed, the Court was fully abreast of its work and then heralded Justice Louis Brandeis said the idea that persons of the age of those incumbent justices was inhibiting the speed of the court's work, were speaking nothing but ''nonsense on stilts.''
It came quickly to be recognized that whatever kind of academic theories could be unfolded, the Court-packing plan was designed to sanction the justices for opinions that Roosevelt disliked. And despite overwhelming Democrat majorities in the Senate and in the House, and the sentiments of the American people, enthusiastic behind much of the New Deal, the American people and the Congress decided that this was not the way you check a judiciary, by a Court-packing scheme that basically sought to nullify the independent Justices of the High Court. And the Court-packing scheme was rejected. It didn't mean that Roosevelt was impotent thereafter. He continued to criticize. The Court did change its mind, even before he appointed a single new Justice, verifying Justice Cardozzo's statement that the ''tides and affairs that engulf the rest of men don't, in their course, turn aside and pass the judges idly by.''
Now today it seems to me that we're confronting a similar situation. I know that those who are encouraging the use of the impeachment power to sanction a judge or a Justice for an allegedly wayward opinion insist that this has nothing to do with politics, nothing to do with the resultsthat all they're trying to do is constrain the courts to acting within their oath of office. But I think that is no more sincere than Roosevelt's insistence that he was worried about the geriatric stress of the Justices when he proposed his Court-packing scheme.
And, indeed, if you examine the kinds of cases that they, that the proponents of this idea itemize, as illustrative of what ought to be considered as impeachable offenses, it suggests that they, indeed, are acting for the same political motives that animated Franklin Delano Roosevelt. Because the list typically excludes decisions like Judge Sprizzo's in New York, which in that case the two defendant churchmen confessed that they violated the law. They said ''we did it. We wanted to block access to the clinic.'' And Judge Sprizzo writes an opinion in which he says ''Well, judges don't really have to enforce positive law if it's morally offensive,'' indicating that the fugitive slave law he would have ignored because he would not have wanted to assist the southern slave owners in recapturing fugitive slaves from Boston or otherwise.
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Now, you may agree or disagree with his moral sentiment, but surely that is a prime case, if there ever was one, where a judge simply states he is above the law, except those that accord with his moral sentimentshe didn't say only those that accord with the Constitution of the United Statesas positive law.
And there are other examples that can be given. I'd be the last one to say that I suppose if you counted up numbers, me being generally a critic of many court rulings, that I might not find more ''liberal'' activism than ''conservative'' activism. But that's not the issue here. The issue is whether or not that what's occurring in the judiciary present with regard to opinions that people may criticize and think are wrong are impeachable offenses, whether that accords with the understanding of the impeachment clause and the way in which it has been applied and interpreted and used in the United States of America.
I think another very telling example, and I'm using history because it perhaps arouses and evokes less emotions than current cases, is the Dred Scott casejust an odious case if ever there was one, in 1857 in which a Supreme Court majority said a black man, whether free or a slave, could never be a citizen of the United States of America. Now, Abraham Lincoln was one of the severest critics of that decision. He later became President. He never said, ''Well, we need to impeach Chief Justice Taney for such a rotten ruling. He worked to overrule it, a constitutional amendment was enacted, and the decision then was buried in a coffin, thankfully, after only 8 years.
I think the point is that the independent judgment of the judges that we secure by preventing their opinions from forming a foundation as an impeachable offense is the price that we pay for having a genuine, rather than a phony or bogus, check on other branches of government. Can it be abused? Of course it can. All authority can be abused. But I think it's clear the Founding Fathers thought that independent judges would be more safe custodians of this power of interpretation than alternate branches. And it's hard for me to see how this Congress could exercise impeachment power for allegedly wrongful decisions, how that process could unfold without the Congress themselves then sitting and having hearings and saying ''Well, was this opinion supported by the language, the legislative history,'' and acting basically as a 435-member supreme court itself. I don't think that is a forum that was designed to yield reason and deliberation, as opposed to more passionate and impulsive responses.
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Thank you, Mr. Chairman.
[The prepared statement of Mr. Fein follows:]
PREPARED STATEMENT OF BRUCE FEIN, MCLEAN, VA
Mr. Chairman and Members of the Subcommittee, I am grateful for the opportunity to testify on an element of judicial independence pivotal to the constitutional role of federal judges to decide cases and controversies free from the distorting influences of popular passions and political ambitions: namely, the constitutionality of impeaching or otherwise disciplining a federal judge for decisions that a majority in the House of Representatives believe are erroneous or bristle with ''judicial activism,'' a phrase that has degenerated into code words by a hefty percentage of self-described political conservatives for rulings that arouse their personal or political ire. As father of the Constitution, James Madison warned in Federalist 55, large assemblies are inauspicious fora for calm and enlightened decisionmaking: ''In all very numerous assemblies, of whatever characters composed, passion never fails to wrest the scepter from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.''
It was an Athenian assembly, you may recall, that convicted Socrates of corrupting youth by seeking truth and virtue and sentenced him to the hemlock. The many abuses of judicial power exercised by the British Parliament prompted the Founding Fathers to make unconstitutional any ''Bill of Attainder,'' i.e., any legislative infliction of punishment. In other words, the constitutional framers believed that Congress was a less trustworthy custodian of justice and the rule of law than was an independent judiciary created by Article III. Indeed, the entire power of judicial review proclaimed most robustly in Chief Justice John Marshall in Marbury v. Madison (1803) bespeaks the same. When President Franklin D. Roosevelt sought to sabotage that power with his ill-conceived court-packing scheme, he received a well-deserved buffeting.
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The supreme jewel in the constitutional gem created by the Founding Fathers was a fiercely independent federal judiciary appointed by President with a national constituency and empowered to review the constitutionality of sister arms of government. That watershed advance in political thinking was comparable to Charles Darwin's Origin of Species in human evolution, and was substantially responsible for British Prime Minister William Gladstone's praise of the Constitution as ''the most remarkable work ... to have been produced by the human intellect ... in its application to political affairs.''
Like all powers created or acknowledged in the Constitution, the judicial power has occasionally been abused by interpretations that seem to narrow or too broad or smack more of personal moral or political views than the application of neutral principles of law. The infamous Dred Scott ruling of 1857 is perhaps the quintessential example. The Founding Fathers understood that federal officeholders in all of the three branches would be unlikely candidates for sainthood or canonization. Thus, they erected a scheme of separation of powers and checks and balances to forestall recurring and oppressive abuses by any branch.
Wayward federal judicial rulings concerning either the Constitution or statutes can be checked by constitutional or statutory amendment. Amendments XI, XIV, XVI, XIX, XXIV, and XXVI to the Constitution reflect that popular check on the judiciary. A companion check is the power of Congress to impeach and to convict a federal judge of ''treason, bribery, or other high crimes and misdemeanors.'' Although the phrase ''high crimes and misdemeanors'' includes egregious political offenses falling short of a crime, it does not reach judicial opinions whose correctness is dubious or offensive to a popular consensus.
Page 73 PREV PAGE TOP OF DOC It speaks volumes on that score that Congress answered the flagrantly erroneous opinion of Chief Justice Roger B. Taney in Dred Scott, with a constitutional amendment, not impeachment of Justices voting with the majority. President Abraham Lincoln, a scathing critic of the decision, never even hinted that impeachment would be a proper remedy. Congress has similarly responded to the Supreme Court's highly unpopular flag burning rulings with a proposed constitutional amendment, not impeachment of the five-member majority, including Justice Antonin Scala. Ditto with regard to the longstanding abortion rights ruling in Roe v. Wade (1973).
Supreme Court Justice Samuel Chase was impeached largely for excessive enthusiasm for enforcement of the Sedition Act of 1798 against Republican Party publishers, but the Senate's acquittal has been received historically as an authoritative renunciation of the idea that impeachment may be invoked to sanction political or judicial opinions.
One Honorable Member of the House of Representatives has avowed that ''I do not advocate impeachment for judges whose opinions [sic] I disagree. I advocate impeachment of those judges who consistently ignore their constitutional role, violate their oath of office and breach the separation of powers.'' But his bill of indictment against federal judges cites only rulings with which he disagrees (e.g., decisions that favor abortion rights, pro-choice, racial preferences, and a judicial power to impose taxes to remedy a constitutional violation), and marshals no evidence that would convict even a single jurist of consistent usurpation of power allocated to co-equal branches of government. Highlighted is the Supreme Court's misinterpretation of the 1964 Civil Rights Act in United Steelworkers v. Weber (1979) to permit voluntary racial preferences in private work places as exemplary of a ruling that might justify impeachment. Although wrongly decided, Weber falls miles short of an impeachable flouting of the judicial oath of office. Indeed, Congress has left the ruling undisturbed for almost two decades despite its power to amend the 1964 law. And the House Speaker stands like the Rock of Gibraltar against correcting that judicial error.
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The Member's indictment denies even cameo appearances to a pair of recent decisions with which he apparently agrees but which represent worrisome judicial sapper attacks against the rule of law. Last January, United States District Judge John Sprizzo acquitted two churchmen of their concededly illegal obstructions of an abortion clinic because the violations were religiously motivated, a defense utterly without legal basis. Judge Sprizzo further pontificated that judges could decline enforcement of the Constitution and laws of the United States (such as the obsolete Fugitive Slave Act) if obedience would be morally unattractive. The judicial oath, however, requires judges to accept the Constitution as enforceable positive law, yet Judge Sprizzo's challenge to that oath has evoked no criticism from the Representative.
He has been similarly close-mouthed about Judge Roy Moore, an Alabama state judge, who defied church-state precedents of the U.S. Supreme Court in posting a copy of the Ten Commandments in his courtroom and in inviting clergy to lead juries in prayer prior to hearing cases. Litigants may properly urge the Supreme Court to overrule its precedents, and subordinate courts may in their opinions suggest the desirability of such reexamination. But the law would turn to ashes if every judge could flout a clear Supreme Court ruling.
In sum, the Member seems aiming to undermine judicial independence by hanging a Sword of Damocles above the heads of judges whose opinions he finds politically unappealing while granting amnesty for those who abuse their authority to further a popular cause. That misuse of the impeachment power would seem a first cousin of President Roosevelt's court-packing scheme and deserves an equal rebuff.
Finally, history teaches that the inescapable laws of gerontology keeps the federal judiciary from persistently defying the mainstream of public sentiments. Supreme Court Justices and subordinate federal judges retire or die. Presidents appoint replacements with philosophies reflecting his popular mandate. The new Justices frequently overrule unsound or anachronistic precedents. In the long run popular opinion and conventional wisdom has ultimately prevailed within the federal judiciary. As Justice Benjamin H. Cardozo verified in The Nature of the Judicial Processstill received as Gospel in the legal world''the great tides and currents which engulf the rest of men, do not turn aside in their course, and pass the judges by.''
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The idea that aggressive brandishing of the impeachment power is necessary to prevent a bevy of unelected judges from ruling the nation like Platonic Guardians is counterfactual, a figment of the imagination.
Mr. COBLE. Thank you, Mr. Fein.
Mr. DELAHUNT. Mr. Chairman.
Mr. COBLE. Yes.
Mr. DELAHUNT. Before Nicki Gamble begins her testimony, I personally would like to acknowledge her presence here not just as a fellow citizen of Massachusetts, but as someone with whom I worked with for many years in trying to enforce constitutional rights in a community that I represented as district attorney, and that Representative Frank represents in Congressthe Town of Brookline.
And I really do want to acknowledge the incredible courage and work that she and her organization did during one of the most high-profile abortion clinic cases in this Nation. My office worked with her as we successfully prosecuted John Salvi for the murder of two young women in my jurisdiction and I want to welcome her here today.
Mr. COBLE. Ms. Gamble, did the gentleman conduct himself reasonably, favorably most of the time you knew him? You don't have to answer that question. That may get him in trouble.
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Ms. GAMBLE. Oh, without question.
Mr. COBLE. Ms. Gamble, we have a vote onwhy don't you give your testimony and then at the end of your testimonyall right, we can go ahead and vote now and then come back. We'll do it that way then. If you all will rest easy, if you will, we'll be back shortly.
Mr. COBLE. The committee will come to order. Folks, again we apologize to you all, but we have no control over when those bells are sounded, so we had a vote and I think we're going to be OK for about an hour, I was told over there.
So Ms. Gamble, if you will proceed.
STATEMENT OF NICKI NICHOLS GAMBLE, PRESIDENT, PLANNED PARENTHOOD LEAGUE OF MASSACHUSETTS
Ms. GAMBLE. Good morning, Mr. Chairman and members of the committee. My name is Nicki Nichols Gamble. I am president of the Planned Parenthood League of Massachusetts.
On December 30, 1994, the most extreme acts of violence ever perpetrated on staff at women's reproductive health care facilities occurred at the Planned Parenthood League of Massachusetts clinic and the former Preterm Health Services in Brookline, MA. On that day, two bright, dedicated young women working as receptionists were gunned down in cold blood by John Salvi whose antiabortion hatred had been fueled by vicious rhetoric and the example of murderous role models like Paul Hill and Michael Griffins. When John Salvi's rampage was over, Shannon Lowney and Lee Ann Nichols were dead. Five other innocent workers and client escorts were grievously wounded, and my colleagues were engulfed by fear and a sense of having been violated beyond their darkest nightmares.
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Prior to December 30, we had accepted a high degree of risk and tolerated physical and verbal abuse to do our work. We were aware of the more than 150 cases of arson or bombings at clinics since 1977. We knew that in 1993 alone at least two clinics had been completely destroyed by fire. The murder of Dr. David Gunn in March 1993 filled our minds and hearts with trepidation and led to President Clinton's signing of the Freedom of Access to Clinic Entrances Act in May 1994. FACE provided an important, albeit permeable, wall of protection. The murders of Dr. John Britton and James Barrett in July 1994 were vivid reminders of the limitations on the rule of law in the relentless battle over abortion. Nevertheless, we depend on the protection of the law and the judges who enforce the law to continue to do our work and to live our lives in relative safety.
December 30, 1994, was indeed the pinnacle of violence in the reproductive health care movement. But it does not stand alone. Throughout this country, since the 1973 U.S. Supreme Court decision in Roe v. Wade, antiabortion zealots who view themselves above the law have harassed and terrorized those of us who are committed to providing safe, legal, and constitutionally-protected abortion services.
From the moment we began providing abortion services in 1982, PPLM has been a target of harassment and violence. During the 1980's, our clinic in Worcester, MA, was attacked twice by a seriously deranged man named Joe Langley who, using rocks and baseball bats, damaged our property and terrorized our staff. The opposition swarmed around our patients in the hallways of the building in which our clinic was located, subjecting them to a virulent form of ''corridor counseling.'' Using the initials ''PP Inc.'' on their doors, the opposition lured and trapped patients into providing their medical history and then subjected them to antiabortion harangues.
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In 1988 and 1989, the fanatical followers of Operation Rescue routinely blockaded our Brookline clinic, at one point invading our facility, locking themselves together at the neck with Kryptonite bicycle locks. Prior to obtaining an injunction against Operation Rescue, it took a combination of Brookline, Boston, and State police to ensure our clients' safe entrance into our facilities.
One Operation Rescue member has persistently harassed our clients and staff outside our Brookline clinic. She has impersonated our clinic escorts, used her imposing size to impede clients from entering our building, and her shouted invectives are so loud that she can be heard blocks away. Only after we obtained a specific court injunction against Barbara Bell have we been able to contain her intimidating presence.
Immediately following the December 30 murders, the preterm health services executive director and I received death threats, requiring that we engage the 24-hour protection of State troopers. Several of our physicians who have young children have also been picketed at home and threatened. Following the receipt of several death threats, one physician was placed under Federal marshal protection for several months.
It was appalling to read of a Federal judge in New York State who refused to enforce FACE, even though he recognized that the two antichoice zealots were clearly harassing a reproductive health care clinic. Judge John Sprizzo found that these abortion protestors' religious beliefs compelled them to block entrance of a clinic in Dobbs Ferry, NY.
Judge Sprizzo's decision is reprehensible. It damages every reproductive health care provider in the country. The judge recognizes harassment when he sees it, but refuses to enforce the law that would prevent it. Does this mean that individuals may evade criminal responsibility on grounds of religious motivation? What does this say to the potential John Salvis of the world? John Salvi claimed to be on a religious mission when he murdered Shannon Lowney and Lee Ann Nichols. Would Judge Sprizzo have agreed?
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Today, in the midst of heightened security, vividly reflected in the installation of metal detectors and bullet-resistant glass, we know that our world has dramatically changed. The risks associated with our work and our mission are no longer merely long hours, or even picketing, blockading, bomb threats, arson, butyric acid attacks, obscene epithets, physical altercations and harassment, and death threats. We now know that the Michael Griffins, Paul Hills, and John Salvis are on our doorsteps and mean to kill, and maim, and wreak mayhem against anyone associated with reproductive health care. We must rely on the protection of the FACE statute, Federal and local law enforcement officers, and judges to uphold the law. As committed as we are, we do not wish to be murdered. Thank you.
Mr. COBLE. Thank you, Ms. Gamble.
[The prepared statement of Ms. Gamble follows:]
PREPARED STATEMENT OF NICKI NICHOLS GAMBLE, PRESIDENT, PLANNED PARENTHOOD LEAGUE OF MASSACHUSETTS
Good morning. My name is Nicki Nichols Gamble, and I am President of the Planned Parenthood League of Massachusetts.
On December 30, 1994, the most extreme acts of violence ever perpetrated on staff at women's reproductive health care facilities occurred at the Planned Parenthood League of Massachusetts clinic and the former Preterm Health Services clinic in Brookline, Massachusetts. On that day, two bright, dedicated young women working as receptionists were gunned down in cold blood by John Salvi, whose anti-abortion hatred had been fueled by vicious rhetoric and the example of murderous role models like Paul Hill and Michael Griffins. When John Salvi's rampage was over, Shannon Lowney and Lee Ann Nichols were dead, five other innocent workers and client escorts were grievously wounded, and my colleagues were engulfed by fear, terror, and a sense of having been violated beyond our darkest nightmares.
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December 30, 1994 will go down in history as a watershed day for the reproductive health care community. The earth moved, the foundation of our sense of security cracked, and the degree to which each and every one of us who provides reproductive health care services acknowledged our personal vulnerability escalated to a ten on the Richter scale.
Prior to December 30, we had accepted a high degree of risk and tolerated physical and verbal abuse to do our work. We were aware of the more than 150 cases of arson or bombings at clinics since 1977. We knew that in 1993 alone, at least two clinics had been completely destroyed by fire. The murder of Dr. David Gunn in March, 1993 filled our minds and hearts with trepidation and led to President Clinton's signing of the Freedom of Access to Clinic Entrances Act in May, 1994. FACE provided an important, albeit permeable, wall of protection. The murders of Dr. John Britton and James Barrett in July, 1994 were vivid reminders of the limitations on the rule of law in the relentless battle over abortion.
We depend on the protection of the law, and the judges who enforce the law, to continue to do our work and to live our lives in relative safety.
December 30, 1994 was indeed the pinnacle of violence in the reproductive health care movement. But it does not stand alone. Throughout this country, since the 1973 United States Supreme Court decision in Roe v. Wade, anti-abortion zealots who view themselves above the law have harassed and terrorized those of us who are committed to providing safe, legal, and constitutionally protected abortion services.
From the moment we began providing abortion services in 1982, PPLM has been a target of harassment and violence. During the 1980s, our clinic in Worcester, Massachusetts was attacked twice by a seriously deranged man named Joe Langley who, using rocks and baseball bats, damaged our property and terrorized our staff. The opposition swarmed around our patients in the hallways of the building in which our clinic was located, subjecting them to a virulent form of ''corridor counseling.'' Using the initials ''PP Inc.'' on their doors, the opposition lured and trapped patients into providing their medical history, and then subjected them to anti-abortion harangues.
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In 1988 and 1989, the fanatical followers of Operation Rescue routinely blockaded our Brookline clinic, at one point invading our waiting rooms, locking themselves together at the neck with Kryptonite bicycle locks. Prior to obtaining a permanent injunction against Operation Rescue in October, 1991, it routinely took a combination of Brookline, Boston and State Police to ensure our clients safe entrance into our facilities.
One Operation Rescue member has persistently harassed our clients and staff outside our Brookline clinic. She has impersonated our clinic escorts, she has used her imposing size to impede clients from entering our building, and her shouted invectives are so loud she can be heard blocks away. Only after we obtained a specific court injunction against Barbara Bell have we been able to contain her intimidating presence. The Massachusetts Supreme Judicial Court upheld our injunction on March 18 of this year.
Immediately following the December 30 murders, the Preterm Health Services Executive Director and I received death threats, requiring that we engage the 24-hour protection of state troopers. Several of our physicians who have young children have also been picketed at home and threatened. Following the receipt of several death threats one physician were placed under federal marshal protection for several months.
Following an Operation Rescue blockade in January, 1990, one of our vice presidents was falsely accused of assault and battery by an especially pernicious anti-choice zealot. Although the staff member was exonerated, she and Planned Parenthood endured the financial and psychological expense of a trial.
Page 82 PREV PAGE TOP OF DOC In recent months, members of our staff and our Board of Directors have received frightening anti-choice mailings at their homes, clearly the result of zealots obtaining their addresses by tracing their license plate numbers and checking state records for non-profit organizations. Our staff and board feel particularly threatened by this invasion of their home lives.
It is appalling for us to read of a Federal judge in New York State who refused to enforce FACE even though he recognized that two anti-choice zealots were clearly harassing a reproductive health care clinic. Judge John E. Sprizzo found that these abortion protesters' religious beliefs compelled them to block the entrance of a clinic in Dobbs Ferry, New York.
Judge Sprizzo's decision is reprehensible and preposterous. It is damaging to every reproductive health care provider throughout the country. This judge recognizes harassment when he sees it, but refuses to enforce the law that would prevent it. Does this mean that individuals may evade criminal responsibility on grounds of religious motivation? What does this say to the potential John Salvis of the world? John Salvi claimed to be on a religious mission when he murdered Shannon Lowney and Lee Ann Nichols. Would Judge Sprizzo have agreed?
We at the Planned Parenthood League of Massachusetts, and every other clinic that provides safe, legal reproductive health care services throughout the country, need the protection of the law, and judges who enforce the law. Today, in the midst of heightened security, vividly reflected in the installation of metal detectors and bullet resistant glass, installed at great financial and emotional expense, we know that our world has dramatically changed. The risks associated with our work and our mission are no longer merely long hours, or even picketing, blockading, bomb threats, arson, butyric acid attacks, obscene epithets, physical altercations and harassment, and death threats at our homes. We now know that the Michael Griffins, Paul Hills and John Salvis are on our doorsteps, and mean to kill and maim and wreak mayhem against anyone associated with reproductive health care. We must rely on the protection of the FACE statute, federal and local law enforcement officers, and judges to uphold the law.
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Mr. COBLE. Mr. Jipping.
STATEMENT OF THOMAS L. JIPPING, M.A., J.D., DIRECTOR, FREE CONGRESS FOUNDATION'S CENTER FOR LAW & DEMOCRACY
Mr. JIPPING. Thank you, Mr. Chairman. I am director of the Free Congress Foundation's Center for Law & Democracy. As part of our work, we have assembled a coalition of more than 300 national and State grassroots organizations that are concerned that a completely unchecked judiciary actually compromises self-government and liberty.
Federal judges often are the lone check on the majority and they do so by enforcing the Constitution. The real question, however, is not whether judges should enforce the Constitution, but whether judges may make up the Constitution they enforce. While Chief Justice John Marshall wrote in Marbury v. Madison that it is the judiciary's duty to say what the law is, he did not write it is the judiciary's duty to say what the law should be.
Whether judges can make up the law cannot depend on whether one likes or dislikes what they make up. For example, the first amendment says, ''Congress shall make no law abridging the freedom of speech.'' If a judge said the word ''no'' actually meant ''any,'' it would give the Congress the power to make any law abridging the freedom of speech. But ''no'' does not mean ''any.'' And besides, ''no'' is the word that's actually in the Constitution. Yet courts have in fact said that the first amendment's prohibition on an establishment of religion actually prohibits an endorsement of religion. But ''establishment'' does not mean ''endorsement,'' and besides, ''establishment'' is the word that's actually there. Yet, I suspect those who said the courts could not turn ''no'' into ''any'' with respect to free speech are perfectly at ease with the courts' turning ''establishment'' into ''endorsement'' with respect to religion. They can't have it both ways.
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Liberty and self-government cannot depend upon narrow likes and dislikesthe stuff of politicsbut upon the inherent structure of our system established in the Constitution. Under the Constitution, judges only have ''judicial power,'' which does not include making the law. Yet the power to say what our laws mean is the power to say what our laws are. Judges, then, do not have the power to make up the meaning of our laws; they only have power to enforce the meaning that is already there.
The Constitution is the supreme law of the land. If judges were armed with the power to make the supreme law of the land mean anything they wish, judges would have all the power. That cannot be. Judicial power must be something less than that. Like all government power, judicial power will grow and threaten individual liberty and self-government if left unchecked. One of the checks provided by the Constitution is impeachment.
Scholars have written for decades about impeachment of public officials generally, and of judges in particular. Most of the judgesor officialsthat have been impeached throughout American history have been judges. The idea that impeachable offenses are limited to indictable offenses is absolutely false, has been false since impeachment was first established under the English common law more than 600 years ago.
In the Federalist No. 81, Alexander Hamilton addressed whether Congress could use impeachment to check excessive judicial power. This is not a new question. He wrote that the argument that judges would attempt to exercise legislative power was, in his words, ''a phantom.'' He called impeachment ''an important constitutional check'' and wrote that judges would never usurp legislative power because they would ''hazard the united resentment of the body entrusted with impeachment.'' Hamilton thought the threat of impeachment would deter judicial activism. We today see that the lack of such a threat has contributed to precisely the opposite effect.
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Finally, let me say a word about judicial independence. If it is only a cliche that really means, ''leave those judges alone because I like what they do,'' is absolutely meaningless. Judicial independence cannot mean judicial license. If judicial independence meant that judges were free to do anything they wished, the idea of assigning judges something called judicial power as opposed to something called legislative power would be ridiculous. It is absurd to say Congress should not exercise power explicitly provided by the Constitution while judges exercise power denied by the Constitution. The same Alexander Hamilton who wrote about Congress impeaching judges who go beyond their proper authority also wrote about the importance of an independent judiciary. Now, either Hamilton had multiple personalities or the idea of impeachment as a check on excessive government power and the operation of an independent judiciary are not mutually exclusive.
To summarize, judges cannot make up the very law they must enforce. Judges today routinely exceed their power, in part because Congress has not used the checks and balances at its disposal, including impeachment. Judges must act independently to be independent. The threat to judicial independence is as much from inside the judiciary as from outside. This is the only formula that will maintain law as something more than politics, and at the same time preserve liberty and self-government. Thank you very much.
[The prepared statement of Mr. Jipping follows:]
PREPARED STATEMENT OF THOMAS L. JIPPING, M.A., J.D., DIRECTOR, FREE CONGRESS FOUNDATION'S, CENTER FOR LAW & Democracy
Page 86 PREV PAGE TOP OF DOC Thank you Mr. Chairman. I am Director of the Free Congress Foundation's Center for Law & Democracy. We now have a coalition of more than 300 national and state grassroots organizations concerned that a completely unchecked judiciary actually compromises self-government and liberty.
Federal judges have a absolutely critical role to play. It is often their responsibility to check the passions of the majority and they do so by enforcing the Constitution. No one disputes that at all. The real question, however, is not whether judges should enforce the Constitution, but whether judges may make up the Constitution they enforce as they go along. Judges must indeed enforce constitutional limits on democracy; judges, however, do not have the power to invent those limits.
Chief Justice John Marshall wrote that it is the duty of the judiciary to say what the law is. He most certainly did not write that the judiciary could say what the law should be. Judges did not establish the Constitution, and judges have no power to change the Constitution.
Either judges have the power to make up the law or they don't and the answer does not depend on whether one likes what judges make up. The First Amendment says that Congress shall make no law abridging the freedom of speech. What if a judge said that the word ''no'' actually meant ''any'' giving Congress the power to make any law abridging the freedom of speech. Everyone would say no, that can't be. ''No'' does not mean ''any'' and, besides, ''no'' is the word that's actually there. Yet courts have taken another word in the first Amendmentthe prohibition on an establishment of religionand insisted that what is actually prohibited is an ''endorsement'' of religion. But establishment does not mean endorsement and, besides, establishment is the word that's actually there. Yet I suspect that the people who said the courts could not turn no into any with respect to free speech are perfectly at ease with the courts turning establishment into endorsement with respect to religion.
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Yet liberty and self-government cannot depend upon one's narrow likes and dislikes, but upon the broad structure of our system. The Constitution gives judges ''judicial power'' to be exercised only in the context of cases and controversies. This does not include making the law. Yet the power to say what our laws mean is the power to say what our laws are. Judges, then, do not have the power to make up the meaning of our laws; they only have the power to enforce the meaning that is already there.
The Constitution is the supreme law of the land. If judges were armed with the power to make the supreme law of the land mean anything they wish, judges would have all the power. This cannot be. No, the judicial power that the Constitution balances against legislative and executive power must be something less than that.
Judicial power, like all government power, will grow and threaten liberty and self-government if left unchecked. One of the checks provided by the Constitution is impeachment.
Scholars, historians, and commentators have written for decades about impeachment. The idea that impeachable offenses are limited to indictable offenses has never been true in the 600 years since impeachment was first established under the English common law. We know that America's founders expected that Congress could use impeachment as a check on excessive judicial power. In the Federalist No. 81, Alexander Hamilton addressed this question specifically. He wrote that judges attempting to exercise legislative power was, in his words, ''in reality a phantom.'' How could he say that, considering that judges routinely do so today? Calling impeachment an ''important constitutional check,'' Hamilton wrote that judges would never usurp the legislature's powers and ''hazard the united resentment of the body entrusted with [impeachment].'' We see today how a lack of such resentment by the body entrusted with impeachment has fostered the very usurping of legislative power by the courts that Hamilton wrote about.
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Finally, let me say a word about judicial independence. If it is only a cliche that really means ''leave those judges alone because I like what they do,'' it means nothing at all. Judicial independence cannot mean judicial license. If judicial independence meant that judges were free to do anything they wished, the idea of assigning judges something called ''judicial power'' and of creating checks and balances to keep that power in check would be ridiculous. The same Alexander Hamilton who wrote about Congress impeaching judges who go beyond their proper authority also wrote about the importance of an independent judiciary. Either Hamilton had multiple personalities, or the idea of impeachment as a check on excessive power and the operation of an independent judiciary are not mutually exclusive. I prefer to believe that Hamilton was not psychotic.
To summarize, there is a way that the judiciary is supposed to function in the system created by America's founders. Judges must enforce laws made by other branches of government; they cannot make up the very law they must enforce. Judges today routinely exceed the proper scope of that judicial power, in part because Congress has not resented them for doing so and used the checks and balances at its disposal. Judicial independence means that judges must act independently by refusing to exercise legislative power. This is the only formula that will maintain law and something more than petty politics and, at the same, preserve liberty and self-government.
Mr. COBLE. Mr. Jipping, thank you. And as I told you all at the outset, your entire testimony will be made a part of the record.
Mr. Tanner, you indicate you might want to be heard. Now, can you comply with the 5-minute rule as well as these other folks did?
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Mr. TANNER. Yes, sir. I think I can.
Mr. COBLE. Well, we'd be glad to hear from you.
Mr. TANNER. I know that it will be enforced if I don't, so I have no hesitancy.
I want to ask Ms. Stout to say another word or two, but before I doour situation is a little different than a theoretical situation. And I guess I would pose the question to the committee: At what point does a dereliction of duty by a judge reach actionable conduct? That, I think, Ms. Stout made clear in her testimony and, if you like, she can recite to the committee a pattern of delay, a pattern of dereliction, a pattern of almost willfully disregarding writs filed in a court in Tennessee with respect to denying by an inaction of rulingdenying the State or anyone else the ability to appeal, which is a remedy for a wrong decision, and we recognize that.
Mr. COBLE. John, why don't we let her do that at the questioning period? I'm sure that someone will put questions to her, if that's OK.
Mr. TANNER. That will be fine, Mr. Chairman. Thank you.
Mr. COBLE. But go ahead, if you
Mr. TANNER. With that understanding, I'll yield back the balance.
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Mr. COBLE. Oh, you did very well
Mr. TANNER. Well, thank you, sir. I'm trying to curry favor with the chairman, actually. [Laughter.]
Mr. COBLE. Thank you. Folks, thanks to all of you for being with us.
Now, we impose the 5-minute rule against us as well. So when the red light shines in our faces, we respond accordingly.
Mr. Jipping, let me start with you. You heard mewere you here when I quoted Gerald Ford?
Mr. JIPPING. Yes, sir.
Mr. COBLE. And I repeat: ''Whatever the majority of the House of Representatives considers to be at a given moment in history, that's impeachment.'' Now, do you thinkstrike that.
First of all, do you agree with that, Mr. Jipping?
Mr. JIPPING. Well, as a practical matter, I suppose. I mean, as a technical matter, if the House passes an article of impeachment about acts against somebody, I guess as a practical matter it acts as an article of impeachmenta ground for impeachmentbut that does not mean that it is consistent by historical standards, by constitutional standards, or as the Framers of the Constitution understood it.
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Mr. COBLE. Well, let's assume, for the sake of discussion today, it is true. Do you think such a broad mandate might invite abuse of legislative prerogative to impeach? I don't think it does, but what do you say on that?
Mr. JIPPING. Well, considering that only 16 officials of any kind have been impeached in our history, only 13 of them have been judges, only 7 have been removed in 220 years, even given the potential breadth of that mandate, it's hardly been abused.
Mr. COBLE. And I think only four in the past almost 60 years.
Mr. JIPPING. That's correct. I think there's a very proper and obvious reticence to use something as extreme, as last resort as impeachment, especially where the courts are concerned. I think that's entirely proper. I think the extreme position is to say, ''What's provided for in the Constitution should never be exercised under any circumstances.''
Mr. COBLE. Thank you. Thank you, sir.
Ms. Stout, let's get back to what Mr. Tanner said. Can you elaborate on any evidence that may have come to your attention exclusive of court rulings, or including court rulings, if you like, which indicate that Judge Nixon is personally biased against the death penalty.
Ms. STOUT. His bias notwithstanding, I have proof of his delays which causes an obstruction of justice to the guilty criminal, as well as to the victim. In the Austin case there was a time elapse of 9 years and 7 months in John Nixon's court. And all of this is in my written testimony. In the Coe case, which is my case, the first writ for habeas appeal sat for 2 years with no action. And then Judge Nixon sent it back to the State for failure to exhaust State remedies. Another habeas was filed in 1992 and it took
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Mr. COBLE. But now, Ms. Stout, this was sent back to the State at the 2-year period?
Ms. STOUT. After 2 years. It took him 2 years to decide that, which is too long. Then, when he filed the second habeas in 1992, it was 4 years and 10 months before we had a decision.
In the Rickman case, it was filed in 1985; it took 9 years and 6 months. In one of the complaints to the sixth circuit court, it was officially on record that there were four complete years of total inactivity by Judge Nixon on this case. And then there was a little bit of activity and then 2 more years of nothing. We're talking about a man's life. We're talking about guilty criminals, you know, justice for the victims. Four years of nothing in a capital caseit's justit's atrocious; it's atrocious. There was a writ of mandamus applied for in the Rickman case. It was denied initially by the sixth circuit. They did not offer the writ of mandamus becausemay I quote from the writ of mandamus?
Mr. COBLE. You may.
Ms. STOUT. ''The district court''which was Judge Nixon,''entered an order scheduling an evidentiary hearing. The district court also sent a letter to this court, the sixth circuit, stating that all pending motions had been addressed at that hearing and that a second hearing had been set to establish a preliminary scheduling order. Based upon that response and the expectation that the habeas action was advancing on the court's docket, we entered an order on October 14, 1992, denying the mandamus petition.''
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The petitioner, the State of Tennessee, immediately sought a rehearing of this petition, asserting that the action in fact had not been advanced on the court's docket and no scheduling order for future progress on that action had been set.
In other words, gentlemen, if I read that correctly, Judge Nixon falsified information to that court?
Mr. COBLE. Well, I think you pretty well answered my question, Ms. Stout. Thank you.
Ms. STOUT. OK.
Mr. COBLE. Mr. Fein, let me talk to you a minute. Are youdo you regard yourself as a strict constructionist or do you believe that some activism from the bench may well be a healthy exercise?
Mr. FEIN. No, I champion the idea that you look at the language, the history, purpose, and the original intent of the Framers; this governs. That's how I think the proper interpretation of the Constitution ought to unfold. I think I subscribe to almost everything Justice Anton Scalia and Judge Bob Borkbefore he was rejected by the U.S. Senateas the proper approach of judicial interpretation.
However, I still do not think the remedy of those who deviate from what I think is correct is impeachment. That seems to me not what the Founding Fathers contemplated, and I think the reason why the broad interpretation of the impeachment clause that you recited from Member Ford has not resulted in many impeachments is because it's never been accepted except by a very tiny, tiny minority of either Members of Congress or of Members of the Senate.
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And with regard to, you know, statements that the impeachment powerat least Hamilton subscribed to the idea that if there was an excess of judicial wrong-headed decisions, then impeachment was proper and that was understood.
Remember, Hamilton was in the Cabinet when the Sedition Act of 1798 was enacted. Now, if there was ever a law that didn't comply with what Mr. Jipping said, was that ''Congress shall make no law abridging freedom of speech,'' it was the Sedition Act, and Hamilton never even uttered a syllable saying, ''Hey, gee, let's get at these judges and impeach them because they're enforcing the Sedition Act'' even though there had been claims that they were unconstitutionalall of them rejected at the time. It was New York Times and Sullivan which ultimately changed that particular ruling.
Now, it was no disguise, however, that, gee, Hamilton was a Federalist and the Sedition Act was to expire as soon as Tom Jefferson came into office and the Republicans came in. It is impossible to disassociate in real politics, you know, partisan motivations from some disinterested interpretation of the law. We just know that as a practical fact; we don't deal with Euclidian geometry in constitutional interpretation. We try to make it approximate that, but it doesn't work because life's too complex. And you can't even read, ''Congress shall make no law abridging freedom of speech,'' and Mr. Jipping suggests, well, that's sort of self-evident when you've got a law that violates that provision. But from the outset, laws prohibiting obscenity, laws prohibiting libel have been accepted, even sedition laws at the outset.
Moreover, if you just read the words, it says, ''Congress shall pass no law.'' Does that mean an Executive order can go ahead and abridge freedom of speech? How about judicial injunctions? It's never been read just as its plain meaning, and you know exactly when a judge is straying too far. If it was that simple, then it might be plausible to have an impeachment remedy and say, ''Gee, if you got it wrong, you are clearly violating your oath of office, because all of these particular constitutional questions are so self-evident, even to a grade school child, that you must be acting in bad faith by not reaching the result that everybody else knows about.'' Nice formula. The problem: it doesn't apply to this planet or to human beings in the United States.
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Mr. COBLE. Thank you, Mr. Fein. I want my colleagues to take notice that I put my question to Mr. Fein prior to the illumination of the red light. [Laughter.]
The gentleman from Massachusetts.
Mr. FRANK. I think, however, Mr. Chairman, that you would be guilty of aiding and abetting, but we'll drop it.
Let me say, first, to Ms. Stout: I very much appreciate your coming. I know it's always difficult, when you've had a personally painful experience, to come and share it this way, and, obviously, it is tragically too late to help in your case, and your willingness to relive that pain to try to prevent other people from having to undergo it is always something thatit impresses me when people are willing to do that, and I appreciate it.
I will tell you that Mr. Tanner and I and some others talked about this. I was not previously aware of these facts; they are disturbing to me, and I intend to look at them further. It strikes me that one of the problems we have is that you have a Chief Judge who has assigned himself all of the habeas petitions involving death penalty cases, and this could not happen if these were trials, because trials would be randomly done.
And one suggestion my colleague from Massachusetts made is we might want to look at a Federal rule that prevented a Chief Judge from assigning himself or herself all the habeas petitions, and if, in fact, these have been subject to a rotation, we would at least have had that pattern of abuse. So, I just want to say I can't say more than that right now, because this is new to me, but I am impressed, and I am grateful to you, and Mr. Tanner has impressed on us justhe's given us a little more information.
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But it also leads me to a question I have for Mr. Jipping, because one of the things that struck me was that in the case that you're talking about, you're talking about a judge who has frustrated the law, as you've represented it, by not acting, and there is no mandate to simply not act. I mean, deliberately refusing to do your duty is somewhat different than trying to do it and being wrong. And that's the issue that I would distinguish between those. Sort of a willful refusal to do your duty could conceivably be, no question, thatas Judge Sprizzo may be doing that on the other side where he just announces that he is going to acquit anybody. In fact, when juries do that these days, people criticize them. People have criticized juries and said, ''Oh, you just ignored the facts, and you let the guy go, because you sort of sympathize with him.'' Well, Judge Sprizzo, who just announces a judge has got a right to do that, those are different, it seems to me, than being wrong on the law.
So, Mr. Jipping, I would agree, if you were consistently so wrong as to be irrational, that there might be a problem of incapacity. So, it's always possible to formulate a standard. But what I'd be interested in, is are there any examples of it? Are there now sitting Supreme Court Justices that you think are impeachable because of the standards that you have formulated?
Mr. JIPPING. I don't know that I've formulated a specific standard
Mr. FRANK. I thought you had some standards about impeachment. Let me ask you then, in your view, are there now sitting Supreme Court Justices who should be subject to impeachment proceedings because they have failed to do the constitutional job as you see it?
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Mr. JIPPING. There are many Supreme Court decisions that
Mr. FRANK. No, no, no, noexcuse me, Mr. Jipping, you know the difference between Supreme Court decisions and Justicesexcuse me, but we have 5 minutes. Are there sitting Supreme Court Justices who you believe should be subject to impeachment proceedings, and who are they?
Mr. JIPPING. There are Supreme Court Justices who have rendered decisions that fit what I was talking about, whether thatI mean, first of all
Mr. FRANK. Well, I need youMr. Jipping, you come here as an authority on impeachment. You know, I tell you, it is one thing to talk about formulas in the abstract, but they don't mean anything, frankly, because different formulas can be shifted. This is, you know, we didn't subpoena you. I don't mean to be invading your privacy. You've been talking about impeachment. It seems to me a reasonable question: Are there Supreme Court Justices now sitting who you think should be subject to impeachment?
Mr. JIPPING. Whether their individual decisions accumulate to make a pattern of that, I don't have a conclusion for that question.
Mr. FRANK. So you don't
Mr. JIPPING. Because I believe it takes more than one decision. I don't believe that one decision
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Mr. FRANK. OK. Well, I understand it takes more than one decision, but you know what? Every Supreme Court Justice now sitting has made more than one decision, and you're here talking about impeachment.
Mr. JIPPING. And I haven't read every single one.
Mr. FRANK. Well, let me ask you about circuit court judges. Are there any sitting circuit court judges who you think should be subject to impeachment?
Mr. JIPPING. I believe that, for example, Judge Stephen Reinhardt on the ninth circuit who hasought to be examined on whether he meets that standard.
Mr. FRANK. No, no, not examined. Should he be impeached? Again, you're the one who has come here and said, ''We're not using this impeachment thing, let's''I mean, what are you afraid of? I mean, put your impeachment where your mouth is.
Mr. JIPPING. He's someone who I wouldsince Congresssince only Congress can impeach, I would say he's someone that Congress should look at to see whether his pattern of
Mr. FRANK. What would your recommendation be to us right now? Because you've looked at it very closely; you're a lawyer. Do you think Judge Reinhardt should be impeached?
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Mr. JIPPING. I'll be glad to look at everything he's written and come back and tell you specifically.
Mr. FRANK. Oh, you haven't
Mr. JIPPING. I have not read every decision made by Judge Reinhardt.
Mr. FRANK. You're not qualified at this point? You don't feel personally qualified to recommend whether or not he should be impeached?
Mr. JIPPING. I haven't read every decision by Stephen Reinhardt.
Mr. FRANK. OK. Well, I have to say, Mr. Jipping, I am massively unimpressed with this waving around of the impeachment weapon, but then you can't tell me a single judge that you think should be impeached, and I must tell you that this inclines me to believe that this is more, in fact, a kind of ideological expression of unhappiness than a factual statement, because if you haven't found anybody who is likely to be impeached, I've got to tell you, I don't think anybody else is either. You're probably the most impeaching person we've dealt with, and if nobody's met your standards, then I don't think we've got too many impeachable people out there.
Thank you, Mr. Chairman.
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Mr. COBLE. I thank the gentleman.
The gentleman from Florida.
Mr. CANADY. Thank you, Mr. Chairman.
Mr. Fein, in your testimony you state that although the phrase ''high crimes and misdemeanors'' includes egregious political offenses, falling short of a crime, it does not reach judicial opinions whose correctness is dubious or offensive to a particularto a popular consensus. What sort of egregious political
Mr. FEIN. I think Richard Nixon is a good example where those who sat on the House Judiciary Committee voted out three articles of impeachment, never acted upon because of the resignation of the President, but they did not charge, and I agree, the examination suggests that everything that Nixon was accused ofusing the IRS in a nefarious way was an indictable crime, but it reflected an abusive political power that was thought very dangerous to our institutions and justified impeachment. Another one of the articles
Mr. CANADY. What about in the judicial context? Whatbecause we're talking about judicial context here. Can you think of examples that would fall in this category?
Mr. FEIN. I think if a judge stated, ''I have no oath; I have no obligation,''if a judge states openly either orally or in writing, ''I don't have an oath to support the constitutional laws and in good faith interpret them; I am above the law, and if I have to choose between my conscience and what the law requires, my conscience trumps,'' then that is a clear statement of abuse of authority. He's no longer acting, in my judgment, at that point, as someone within our institutions; he's acting above them, and that wouldthat judge, in my judgment, would be properly impeachable.
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Mr. CANADY. Well, what about someone who behaves that way but doesn't confess it? I mean, that's part of the problem
Mr. FEIN. There areI understand, there could be circumstantial evidence. I suppose it would be possible, just as there was very strong circumstantial evidence that Roosevelt's Court-packing plan, although he said it was because he was concerned about the gerontology problem of the aging justices, that it sure seemed that it was these votes that they were casting; that there would be occasions, something that was systematic and put in footnotes that you could deduce from circumstantial evidence short of self-confession, falling on the sword, that would justify. I can't, because I think you would have to take into account all of the circumstances. Again, we're not dealing with algorithms here, but that would be possible.
Mr. CANADY. Well, let me ask you to comment on the case that has been detailed by Ms. Stout. Now, I realize we've just had a summary of what is undoubtedly a very complex situation, but whatjust based onand we'll stipulate to the accuracy of the facts that have been testified to here, and I have no reason to doubt themwhat would your reaction be to circumstances such as that?
Mr. FEIN. Well, if a judgeI'm not worriedif a judge willfully refuses to render a decision, it's a willful refusal to render a decision, that's not an opinion on the merits, which is what I worry about: is the Constitution being interpreted without the proper atmosphere? And I don't have difficulty in sanctioning a judge like that. I know there have been efforts at the State level, which this committee may want to consider, that stipulate something as follows: If, without good cause, a judge or justice delays rendering an opinion within 30 days, the salary is no longer paid. Now, as Sam Johnson quipped, that concentrates the mind wonderfully, and alacrity greeted the dockets of these judges, and that's something that might be utilized in these situations.
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You would have tothe judge would have to give a bona fide reason why this is taking longer than 30 days in order to avoid that slash in salary. Now, maybe you run into problems of compensation being reduced, or whatever, but I think there could be something similar that might be contemplated on the Federal side, but if you just have a willful refusal to decide cases, I don't find a difficulty in using impeachment for that corrective.
Mr. CANADY. Let me point out one other thing you mentioned in your written testimony. You say that ''Presidents appoint replacements with philosophies reflecting their popular mandate.'' Do you really think experience bears that out? I just think about appointments made by recent Republican Presidents which don't seem toappointees who do not seem to reflect what most people would understand as the popular mandate associated with the President.
Mr. FEIN. Well, if we want to gowhether you would like to speak with the George Bush administration or the Ronald Reagan administration, there certainly have been instances where you found some judicial surprises; that goes back to Abe Lincoln who appointed Chief Justice Chase because he was safe on slavery and legal tender, and then he voted opposite when he got on the High Court. I think it's fair to say, however, if you look at all of the, now about 110 or 112 Justices, Congressman Canady, the vast majority of them have ended up voting with similar kind of philosophies of the President. They could say, ''Gee, David Souter, does he really reflectalthough he's clearly a liberal votedoes he reflect the general philosophy of Gerald Ford?excuse meof George Bush? And I think my answer would be, yes, he was the pick, basically, of John Sununu, that rock-hard conservative.
Page 103 PREV PAGE TOP OF DOC Mr. CANADY. Well, my time's expired. With the Chair's indulgence, could I ask one brief question of Ms. Gamble?
Mr. COBLE. Proceed.
Mr. CANADY. OK. Would you support, and do you believe that the Congress should consider impeaching Judge Sprizzo?
Ms. GAMBLE. I'm reallyI am not a lawyer, and I am not a sort of impeachment expert; I am really here to say how important it is for judges to carry out the rule of law and to protect the Constitution.
Mr. CANADY. Thank you very much.
Mr. COBLE. I thank the gentleman.
The gentleman from Michigan, Mr. Conyers.
Mr. CONYERS. Thank you very much, Mr. Chairman.
I'd like to compliment the two women that are witnesses here today. Ms. Stout, under long existing difficult circumstances you've continued your struggle, and I'd like to indicate, along with Congressman Tanner, that this committee will look into the circumstance that you've brought before us. That's always a good beginning place, and I don't profess any knowledge about the matter before today, and I promise you to examine it with all the care that I can bring to the matter.
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To the gentlelady from Massachusetts, it takes so much courage these days for you and people in your line of health care providing to do your work. As a matter of fact, there is intimidation now going on amongtoward the doctors themselves as well as people that work in hospitals, in clinics like you do, and it's sort of sad thing, isn't it, that in this day and age people operating within the law, minding their own business, as a matter of fact, doing work that hasthat deals with the health and well being of people, can be almost arbitrarily harassed and victimized, assaulted, and yes, even killed. And it seems to me that this is a subject matter that this committee ought to address itself to with a lot more vigor than we have up until now. And I want to promise to you that this is a subject separate from the judicial proceedings that are the issue today that we want to go into more deeply and with more detail in terms of how we can merely provide protection for people that do the kind of work that you do.
Ms. GAMBLE. Thank you, sir. I think I can speak on behalf of all of my colleagues that we would be enormously appreciative of the attention of this committee.
Mr. CONYERS. Thank you very much.
Now today's hearing isn't really on H.R. 1252, which was the subject of yesterday's hearing. What we've done is broaden our focus. As a matter of fact, I've heard very little about the five items that are contained in that bill, and I want to compliment the sponsors, which is the chairman of the committee and the chairman of the subcommittee and all of the ranking members of theI mean all of the Republican members of the subcommittee, most especially including my good musical compadre, Sonny Bono, who wasn't where he ought to have been last night; he was missed at a musical function, but that's neither here nor there. But this is a more general and free-ranging discussion of judicial misconduct and discipline.
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OK, now there's somebody here among the witnesses that feels that judicial misconduct is on the rise? Or that there are more judges needing discipline than ever? Because that's who I want to talk to. Who wants to spend a couple of minutes with me on evaluating that question? Is there more judicial misconduct than ever or are we just talking about there are certainly offensive things that are happening that you're bringing to the attention of this subcommittee, which is what we're here for? That's what we do.
Mr. FEIN. Congressman Conyers, if I could answer a little different question, which is relating to problems that arise because we have such a multiplication
Mr. CONYERS. Wait a minute, we don'tMr. Fein, we don't deal with different questions when I've got a question forward. You may get to that or we may talk about it after the hearing, but we don't switch questions in a committee hearing.
I yield back my time, Mr. Chairman.
Mr. COBLE. I thank the gentleman.
The gentleman from Indiana is recognized for 5 minutes.
Mr. PEASE. Thank you, Mr. Chairman. Since I was not able, because I was in another hearing, to hear your testimony, I don't think it's appropriate for me to question this panel, but I do want to participate in the next one. Thank you, Mr. Chairman.
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Mr. COBLE. I thank the gentleman.
The gentlelady from California.
Ms. LOFGREN. Thank you, Mr. Chairman.
This is one of the most serious issues, I think, that has faced this committee, this whole proposal to basically change the way impeachment has been approached in America for more than the last 200 years, and the potential for creating fundamental changes in our system of checks and balances is certainly present. So I think it's important that we proceed cautiously and slowly.
And I guess I have a question for Mr. Fein. You've been very articulate in analyzing where we have been as a country, and it's been very helpful. I don't know if you were here this morning to hear the majority whip's testimony, Mr. DeLay's testimony, but in the course of his testimony he suggests impeachment when judges go beyond what the Constitution allows, or what he thinks the Constitution allows, and cites as an example Judge Thelton Henderson, a district court judge in California who enjoined for a period of 4 months implementation of proposition 209.
Interestingly enough, the Cato Institute, which will testify after this panel, analyzed that same case and concluded that Judge Thelton Henderson, although he ultimately was overturned by the ninth circuit, did not act in a frivolous manner, and they mention the cases that he cited and that it turns out they think it was a stretch, and he was wrong, but certainly not without a basis to act. Which of the two, the Cato Institute or the DeLay analysis, would you consider to be a sounder legal view, if you have an opinion on it?
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Mr. FEIN. Oh, I have read both, the district court's opinion as well as the court of appeals overturning him. I don't think there's anything in the court of appeals ruling that suggests that the district court was acting in bad faith. Judges having court can sort of put in footnotes and asides whatever scathing criticism they want of their colleagues, and have done it on occasion in controversial cases. I think that, clearly, the ruling below was wrong, but I don't think that that comes close to being an impeachable offense. One decision, which ifyou know, you can look at some of the Supreme Court precedents: the Seattle busing case, it had some, you know, arguable nonfrivolous foundation; I didn't think it was very strong, but I think, you know, if I didn't have profound puritanical scruples against betting, that Congressman DeLay had not read the two opinions and matched them side to side before he wrote that.
Ms. LOFGREN. Well, I certainly wouldn't want to speculate about what the majority whip read or didn't read, but he did say in his testimony, he did suggest, I think pretty clearly, that that decision should be the basis for impeachment
Mr. FEIN. But, see, the reason why I make that observationI don't want it to be flippantis precisely because it underscores the different institutional roles of Congress and the judiciary. No one really thinks it's scandalous for, you know, a Member of Congress to comment upon an opinion without even having read it. Roe v. Wade is always brooded about; it's a tome-like-length opinionyou know, ''War and Peace'' looks like a short story; you've got to get through 200-and-some pages of it, and persons stand up in this committee, and they have a right to do that, and say, ''Oh, this is a terrible decision; there's no foundation.'' Well, it may be accurate, but we know that conclusion doesn't come because they personally got involved and read the opinion and thought about it.
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Judges do their own homework; sometimes it's wrong, and they have staff, but that's the atmosphere in which they operate. That's why, although they can make errorsand they make them a lot of the time, and I criticize them a lotas an institution, it comes out far better than legislators, whose whole role is entirely different; their whole intellect responds to different kind of cues.
Ms. LOFGREN. You are familiar with the history of our country, which we all love and are proud of, and if you could predict, if we were to adopt the proposal of Mr. DeLay to engage in impeachment activities for something like the Henderson decision, where do you think it would ultimately take our system of checks and balances?
Mr. FEIN. I think it would largely eliminate it, because the whole purpose of having the judiciary and conceiving it as a check is precisely because it's there to resist the passions of the moment; it's there to resist popular passion, and that's why we want them to decide not wrongly; we try to hector them and criticize them if they think they're wrongly approached, but we want them to decide in a more calm atmosphere that's removed from what politicians and the public may think is desired at that time.
And surely that was truewe should learn from our very tragic years during the Civil War daysI mean, the civil rights movement in the 1950's and 1960'syou know, could youwhere you had the Southern Manifesto and you had many, many politicians, George Curly Wallace, and we recount Orville Faubus and others, and if a judge goes out and says, ''Gee, you know, if I decide, you know, that equal protection as the Supreme Court interpreted means desegregation of the schools, and you're a district judge or a circuit judge, then you get impeached the next day.'' Boy, you know, we'd still be very, very backwards in the civil rights period, and that's illustrative of the need for having a check.
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Sometimes the check works in favor of a liberal agenda; sometimes a conservative agenda, and it oftentimes gets out of kilter, but the way that we've remedied that is these folks do die. Presidents do appoint individual judges, and oftentimes the judges change their mind. I keep underscoring the fact that Franklin Roosevelt, despite the thorough rejection of the Court-packing plan, had the Court deciding in his favor before he appointed a single new Justice.
Ms. LOFGREN. Thank you, Mr. Chairman.
Mr. COBLE. I thank the lady.
The gentleman from California. Mr. Bono, I don't stay current on the social calendar, but was there a musical event that Mr. Conyers mentioned I didn't know about?
Mr. BONO. We have different artists coming and talking to different members about the copyright issue. As you know it is a big issue as far as performers are concerned. Yesterday I was introduced to this lady where she was performing last night. Mr. Conyers said, ''You should come.'' I replied, ''I will try to come,'' but I wanted to tell him he must have forgotten that when you have a wife and two children, you can't make a spontaneous decision like that anymore; that's totally out of the question. [Laughter.]
Mr. COBLE. You can tell me that later. You are now recognized, sir, for 5 minutes.
Page 110 PREV PAGE TOP OF DOC Mr. BONO. Thank you, Mr. Chairman. Did Barney leave? Barney left? OK.
Mr. COBLE. He's coming back, he said.
Mr. BONO. I wanted to go on the record thatI wasn't here, but I understand he was talking about 209 yesterday and brought up the referendum on California on marijuana which iswhat?207, 215? And that I do want to go on the record saying that ifI don't agree with it at all I oppose it but it passed, and the people passed it, and, therefore, I support it. It's not where I support my stuff, but won't support somebody else's stuff. I just want to go on the record.
Mr. Fein, obviously, you know the Constitution very well. I presume the idea of the Constitution was that we had checks and balances so that on a general basis we would have justice; or an overall basis justice would prevail. It appears to me, anyway, that was the idea. Would you say agree?
Mr. FEIN. Yes.
Mr. BONO. I think it works pretty well. There's another philosophy that doesn't include the Constitution, I think in a societyif you pay for this coffee, and you give a guy a dollar, you expect a dollar's worth of coffee. That prevails everywhere. If you're in trouble with your wife, she expects some flowers, and you'd better bring them. In general, there is always this exchange basis, and it varies in life.
Page 111 PREV PAGE TOP OF DOC I was a mayor, and what amazed me was that every other Wednesday the citizens could get up and testify on whatever they wanted. They would call you names I've never heard of before. I thought, ''Well, wait a minute, I'm a mayor; they can't do this.'' Yes, they can, and they did, and so it's a wonderful experience. You get 4 years of that unless you're really stupid and sign up for 4 more. [Laughter.]
Anyway, on this exchange basis, I am always impressed in the court where, you must do certain things. You must stand up; you must sit down; you must say, ''Your Honor''; you must say, ''Ah,'' and if he says, bam, ''Shut up or you're going to jail,'' you'd better, because you're going to jail.
And yesterday, Attorney General Lungren played me a tape of a judge talking to a lawyer and in my view the judge was insane, simply insane; I mean, he made absolutely no sense. So, on an exchange basis, he denied that lawyer her rights. If you listen to other lawyers, you hear that this often occurs. Judges just take these positionsor in the case of a trial.
As I understand you, you're saying that in no way should a judge ever face impeachment. I guess that is equivalent to firing somebody. Would you say that's fair?
Mr. COBLE. Mr. Fein, if you can, give your abbreviated version, if you don't mind. I don't mean to be a muzzle. [Laughter.]
Mr. FEIN. Yes, it's a concession to the shortness of the light, yes, sir.
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No, I didn't say that. All I said was that, for opinions rendered in good faith in interpreting the law, there should not be impeachment.
Mr. BONO. Well, good faith is what he believes.
Mr. FEIN. No, we deduce from circumstances and from expressed statements whether someone's acting in good faith. I gave an example of Judge Sprizzo, where he said explicitly, ''When it comes to choosing between my conscience and the law, my conscience trumps.''
Mr. BONO. OK, I got it. I'm just saying that, basically, these guys can't be fired. If you file charges against them, you might be in a lot of trouble if they do humiliate you. If they make a decision that is staggering, there's nothing you can do about it. In that structure I don't see the exchange system working there I'm not an impeachment guy; I don't think that, but if there is not accountability, and judges can do whatever they want, there will be abuse. I think that what we do have to look at this, and there should be an accountability for everyone; I have it; you have it; I'm sure we all have it, but they do whatever they want. I think that's an inequity in the balance of this country, and unless we fix that, it's getting worse.
People speak, for example they said, ''Now you've got to tell when a molester moves back into a neighborhood.'' The people said that, not the judges.
So, I disagree with you, sir. Thank you.
Page 113 PREV PAGE TOP OF DOC Mr. COBLE. Thank you, the gentleman from California.
The gentleman from Massachusetts is recognized for 5 minutes.
Mr. DELAHUNT. Thank you, Mr. Chairman.
As I listened to the testimony here this morning, it caused me to reflect for a moment, and I'd address this statement and observation to Mr. Fein and ask for a comment from him. I think what we're forgetting here is probably the fundamental premise of our Constitution, which is really a restraint onfor lack of a better termmajoritarian government. While we frequently hear of unpopular decisions, would you agree that the Founding Fathers, when they drafted the Constitutionand, most specifically, the Bill of Rightswanted to prevent, if you will, a tyranny of the majority?
Mr. FEIN. That fits the Founding Fathers like a glove. Indeed, in Federalist 48, James Madison underscores that the branch most to be feared was the legislative branch; it was ''grabbing all power into its vortex'' is what Madison said.
Mr. DELAHUNT. Well, I'm glad that Madison agrees with Delahunt on this particular occasion. [Laughter.]
I also want to join with the remarks of Mr. Conyers and Mr. Frank as they relate to Ms. Stout. We applaud your courage. And let me just say this, too: that your testimony today I think was very important, because I think what it does illustrate is that many of us have much to learn here. I happened in my former life to be a law enforcement official, a prosecutor in a major jurisdiction in Greater Boston, but I never realized that habeas corpus petitions that they were referred to the Chief Judge of the district court and that the Chief Judge had the option to retain them, which is vastly different than the assignment of cases as they come into the Federal system.
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I don't know if you're aware, but when litigants or when the U.S. attorney brings a criminal case into Federal court, it goes into a lottery system, if you will, and it is then assigned to a variety of judges on a random basis. And I think the point you raiseand, again, I want to be very clear; obviously, counsel for the defendant is not present here today, and I think we should note that we don't know what arguments he would make, but I clearly think, in terms of policy, I don't see any rationale for an exception in terms of habeas corpus petitions.
And it was your Representative, Congressman Tanner, who brought that to my attention, and my response was we should look at a rule to change that assignment, but the point is that that is considerably less than impeachment; that there are available remedies that can meet and address the concerns that you express in terms of delay without resorting to impeachment. And again, in a conversation that I had with my ranking member and Congressman Tanner, this is something that we shall explore.
My last question I direct to Mr. Jipping, and let me just follow the line of questioning that Mr. Frank had pursued. How many Federal district court judges do you think are susceptible to impeachment? I want to get my handsI want to try to get a grasp of the problem in terms of the dimension of the problem as you see it. You say there's one circuit court
Mr. JIPPING. Everyone heard the nature of the questions thatwhat I was permitted to say and what I wasn't. What I'm here to talkto suggest
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Mr. DELAHUNT. Could you answer my question though: how many Federal district court judges
Mr. JIPPING. I wasn't asked to come here with a list of who I thought
Mr. DELAHUNT. I'm not asking you what you were here to come with, sir.
Mr. JIPPING. I don't have that number for you, sir.
Mr. DELAHUNT. You don't have a number? Do you have any names?
Mr. JIPPING. Not in this setting, no.
Mr. DELAHUNT. You don't?
Mr. JIPPING. I don't. That's not what I was
Mr. DELAHUNT. I yield back the balance of my time.
Mr. JIPPING. Could I thank you, though, you and Mr. Conyers and Mr. Frank, in what you'd said to Ms. Stout; that's exactly the kind of thing that's a good, you know, result of this dialog.
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Mr. DELAHUNT. Absolutely.
Mr. JIPPING. Real stories, because these are the problems that people perceive either with the judiciary as a whole or individuals; they take different forms and may have different ways of addressing them, and that's a good thing that comes from this sort of a dialog, whether it's impeachment or lots of the other suggestions
Mr. DELAHUNT. I think we find ourselves in agreement, Mr. Jipping, and I think that everybody, including myself, who sits on this panel acknowledges the fact that Congress does have an appropriate role in interfacing with the judges, but the question of encroachment on an independent branch, howeverand while I have the floor, Mr. Chairman, if I may, Mr. Coble, if I may, I'd like to introduce a letter that's addressed to the Honorable Newt Gingrich, for the record, from 110 deans of law schools concerning some of these proposals, if I may with your indulgence submit this for the record.
Mr. COBLE. Without objection.
Mr. DELAHUNT. Thank you.
[The information follows:]
Hon. NEWT GINGRICH,
Speaker of the House,
Page 117 PREV PAGE TOP OF DOCU.S. House of Representatives,
DEAR MR. SPEAKER: We, the undersigned law school deans, write to convey our strong opposition to proposals to initiate impeachment proceedings against federal judges who have rendered politically unpopular decisions in cases or controversies properly before them.
Comments by various members of Congress and views expressed in Impeachment! by David Barton suggest that impeachment is an appropriate mechanism to restrain an ''overactive'' judiciary and that, even though it is unlikely that impeachment will result in conviction, bringing impeachment proceedings against certain federal judges will have a deterrent effect on the substance of their subsequent rulings from the bench. These rationales mis-characterize the purpose of impeachment and only encourage Congress to abuse its extraordinary power to remove a federal judge from office.
Our Constitution created three separate but equal branches of government. To avoid tyranny, power was dispersed among the three branches, joint action by two or more branches was often required to accomplish a legitimate governmental objective, and a system of checks and balances was created whereby each branch was given mechanisms to constrain abuses by the other branches. In the Federalist Papers, No. 78, Hamilton wrote, ''For I agree that there is no liberty, if the power of judging be not separated from the legislative and executive powers....[L]iberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments....'' Thus, our founding fathers created an independent federal judiciary to interpret the Constitution and protect the civil liberties and fundamental rights of each and every citizen against the tyranny of the majority.
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So essential was the concept of an independent judiciary to our constitutional system that our forefathers sought to protect our federal judges from political reprisals for unpopular decisions by giving them life tenure and a guarantee of no diminution in salary during ''good behavior.'' As an ultimate check on judicial independence, Congress was given the power to remove judges from office for ''Treason, Bribery, or other high crimes and misdemeanors,'' the same standard applied to officers of the other two Branches.
Impeachment is an extreme measure and has always been reserved for the most egregious forms of misconduct by a judge. While there is no definitive list of offenses which rise to the level of ''high crimes and misdemeanors,'' the National Commission on Judicial Discipline and Removal, which was established by Congress, stated in its final report issued in 1993 that ''Congress has removed judges for various forms of official personal misconduct, but it has not done so because it disagreed with the outcome of cases. The impeachment and acquittal in 1805 of Samuel Chase, the controversial Federalist justice, seems to have inclined Congress and the Country away from regarding impeachment as a general political check on the substantive exercise of judicial power.'' Indeed, over the past two centuries, Congress has only removed seven federal judges from office; and in every instance, the impeachment charges were based on intentional misconduct involving perjury, corruption, tax evasion, bribery or treason, and never because of disagreement over a judicial opinion they rendered.
In 1986, the chairman of the House Judiciary Subcommittee on Courts, Civil Liberties and the Administration of Justice issued an advisory opinion on the propriety of a citizen-led effort to impeach three judges who outraged some members of the public because they overturned a murder conviction after determining that inflammatory pretrial publicity prevented the defendants from getting a fair trial. The chairman concluded, rightly:
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A judicial decision (right or wrong) standing alone, cannot rise to the level of a ''high crime or misdemeanor.'' If this was otherwise, the impeachment remedy would become merely another avenue for judicial review: a sort of legislative referendum on the quality of judicial decision-making. To the contrary, impeachment is a last step and an extraordinary response at that.
Even though judges should not face impeachment charges for specific judicial decisions, they nonetheless are accountable for their decisions. Since judges are required to explain their decisions, decisions are subject to public and professional scrutiny. Furthermore, our elaborate system of appellate review constitutes a fundamental check on judicial decision-making. Likewise, even though impeachment is a remedy reserved for egregious violations of judicial duty, mechanisms exist to discipline judges for other forms of misconduct; for example, judges are subject to disciplinary action by their judicial councils for conduct ''prejudicial to the effective and expeditious administration of the business of the courts,'' and they are also subject to criminal prosecution for criminal violations.
Impeachment was never intended to be usedand never should be usedagainst a judge who issues an opinion with which members of the other branches disagree. We urge you to adhere to the long-standing precedent established by your congressional colleagues over the years to use the extraordinary impeachment remedy only in extraordinary circumstances of judicial misconduct.
We hope that you will use the influence of your office to end all efforts to impeach federal judges on the basis of unpopular decisions and to preserve the institutional integrity of the federal bench.
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Dean Richard L. Aynes, C. Blake McDowell Law Center, University of Akron; Dean Thomas H. Sponsler, Albany Law School, Union University; Dean Joel Seligman, College of Law, University of Arizona; Dean Leonard Strickman, School of Law, University of Arkansas; Dean John Sebert, School of Law, University of Baltimore; Dean Aviom Soifer, Boston College Law School; Dean H. Reese Hansen, J. Reuben Clark Law School, Brigham Young University; Dean Herma Hill Kay, Boalt Hall School of Law, University of California; Dean Richard J. Morgan, College of Law, Arizona State University; Dean William H. Bowen, School of Law, University of Arkansas at Little Rock; Dean Bradley J.B. Toben, Law School, Baylor University; Dean Ronald A. Cass, School of Law, Boston University; Dean Bruce Wolk, School of Law, University of California at Davis; Dean Susan Westerberg Prager, University of California School of Law; Dean Patrick K. Hetrick, Norman Adrian Wiggins School of Law, Campbell University; Dean Steven C. Bahls, Capital University School of Law; Dean Joseph P. Tomain, College of Law, University of Cincinnati; Interim Dean Steven H. Steinglass, Cleveland-Marshall College of Law, Cleveland State University; Dean David W. Leebron, School of Law, Columbia University; Acting Dean Mark C. Weber, College of Law, DePaul University; Dean Michael J. Gerhardt, School of Law, Case Western Reserve University; Interim Dean Stuart Deutsch, Chicago-Kent College of Law, Illinois Institute of Technology; Dean Kristin B. Glen, Law School at Queens College, City University of New York; Dean Hugh C. Macgill, School of Law, University of Connecticut; Dean Lawrence Raful, School of Law, Creighton University; Dean Dennis Lynch, College of Law, University of Denver; Dean Peter G. Glenn, Dickinson School of Law; Dean William Robinson, District of Columbia School of Law; Dean Robert M. Viles, Franklin Pierce Law Center; Dean Richard Matasar, College of Law, University of Florida; Dean Anthony J. Pagano, School of Law, Golden Gate University; Dean Raymond R. Krause, School of Law, Hamline University; Dean Lawrence C. Foster, Williams S. Richardson School of Law, University of Hawaii; Interim Dean Robert C. Hunter, Law School, Drake University; Dean Nicholas P. Cafardi, School of Law, Duquesne University; Dean John D. Feerick, School of Law, Fordham University; Dean Judith C. Areen, Georgetown University Law Center; Dean Edward Spurgeon, School of Law, University of Georgia; Dean Stuart Rabinowitz, School of Law, Hofstra University; Dean Stephen Zamora, Law Center, University of Houston; Interim Dean John A. Miller, College of Law, University of Idaho; Dean Alfred C. Aman, School of Law, Indiana University; Dean Carlos E. Ramos Gonzalez, Inter-American University School of Law; Dean R. Gilbert Johnston, John Marshall Law School; Interim Dean Alice Gresham Bullock, School of Law, Howard University; Dean Thomas Mengler, College of Law, University of Illinois; Dean Norman Lefstein, Indiana University School of Law; Dean N. William Hines, College of Law, University of Iowa; Dean David E. Shipley, College of Law, University of Kentucky; Dean Gerald T. McLaughlin, Loyola Law School; Dean Howard Eisenberg, Marquette University School of Law; Dean Donald Gifford, School of Law, University of Maryland; Dean Donald Polden, Cecil C. Humphreys School of Law, University of Memphis; Dean E. Thomas Sullivan, School of Law, University of Minnesota; Interim Dean William Champion, School of Law, University of Mississippi; Dean Harvey Perlman, College of Law, University of Nebraska; Dean Leo Romero, School of Law, University of New Mexico; Dean Judith W. Wegner, School of Law, University of North Carolina; Dean R. Lawrence Dessem, Walter F. George School of Law, Mercer University; Dean Jeffrey S. Lehman, School of Law, University of Michigan; Dean J. Richard Hurt, School of Law, Mississippi College; Dean Timothy J. Heinsz, School of Law, University of Missouri; Dean E. Edwin Eck, School of Law, University of Montana; Dean Harry Wellington, New York Law School; Dean Percy Luney, School of Law, North Carolina Central University; Dean David Hall, School of Law, Northeastern University; Dean David Link, Nortre Dame Law School; Dean Victor L. Streib, Pettit College of Law, Ohio Northern University; Dean Andrew M. Coats, College of Law, University of Oklahoma; Dean Colin S. Diver, School of Law, University of Pennsylvania; Dean Peter M. Shane, School of Law, University of Pittsburgh; Dean Neil H. Cogan, School of Law, Quinnipiac College; Dean David E. VanZandt, School of Law, Northwestern University; Dean Rennard Strickland, School of Law, Oklahoma City University; Dean John E. Ryan, School of Law, Roger Williams University; Dean Rudolph C. Hasl, School of Law, St. John's University; Dean Barbara Bader Aldave, School of Law, St. Mary's University; Dean Barry A. Currier, Cumberland School of Law, Samford University; Dean H. Jay Folberg, School of Law, University of San Francisco; Dean John E. Montgomery, School of Law, University of South Carolina; Dean Frank T. Read, South Texas College of Law; Dean C. Paul Rogers, III, School of Law, Southern Methodist University; Dean Roger I. Abrams, Law School/Newark, Rutgers University; Dean Daniel J. Morrissey, School of Law, St. Thomas University; Dean Barry Vickrey, School of Law, University of South Dakota; Chancellor B.K. Agnihotri, Southern University Law School; Dean Richard Wirtz, University of Tennessee College of Law; Interim Dean McKen Carrington, Thurgood Marshall School of Law, Texas Southern University; Dean Howard Glickstein, Jacob D. Fuchsberg Law Center, Touro College; Dean Martin H. Belsky, College of Law, University of Tulsa; Dean Edward M. Gaffney, Jr., School of Law, Valparaiso University; Dean Barry B. Boyer, University of Buffalo School of Law; Dean M. Michael Sharlot, School of Law, University of Texas; Dean Edward F. Sherman, Tulane University School of Law; Acting Dean David F. Partiett, School of Law, Vanderbilt University; Dean Robert E. Scott, School of Law, University of Virginia; Dean James K. Robinson, Law School, Wayne State University; Dean Donald J. Dunn, School of Law, Western New England College; Dean Arthur N. Frakt, Widener University School of Law; Dean Robert Ackerman, College of Law, Williamette University; Dean Daniel O. Bernstine, Law School, University of Wisconsin; Dean Robert K. Walsh, School of Law, Wake Forest University; Dean James M. Concannon, School of Law, Washburn University of Topeka; Dean Roland L. Hjorth, School of Law, University of Washington; Dean Teree Foster, College of Law, West Virginia University; Dean John A. FitzRandolph, Whittier Law School; Dean Thomas G. Krattenmaker, Marshall-Wythe School of Law, College of William and Mary; Dean Harry J. Haynsworth, College of Law, William Mitchell; Acting Dean John M. Burman, University of Wyoming College of Law; and Dean Paul R. Verkuil,
Page 121 PREV PAGE TOP OF DOCBenjamin N. Cardozo School of Law, Yeshiva University.
cc: Members, House of Representatives.
Mr. COBLE. In fact, I believe, Mr. Delahunt, the chairman, Chairman Hyde's bill, I think, addresses what we're discussing today in some detail.
The gentleman from Tennessee. You are recognized for 5 minutes.
Mr. BRYANT. Thank you, Mr. Chairman. I thank you for your courtesy in allowing me this time.
I ask unanimous consent to attach as part of this record a statement from a constituent of mine, Ms. Rebecca Easley of Dixon, TN, for consideration by the committee. Ms. Easley's sister was, at the contract hiring of her husband, kidnapped, raped, and killed. She was left in the trunk of a car for 4 days in the summer heat in a Memphis parking lot, and 17 years later, as Ms. Stout has pointed out in her testimony, had that case reversed, both the death sentence and the conviction reversed.
Mr. COBLE. Without objection.
[The prepared statement of Ms. Easley follows:]
PREPARED STATEMENT OF REBECCA EASLEY, BURNS, TN
Page 122 PREV PAGE TOP OF DOC In November 1994 I filed a formal complaint against Federal District Judge John T. Nixon of Nashville to the Sixth Circuit Court in Cincinnati, The suggestion for this had been made by my Senator at that time, Jim Sasser. I had written to him explaining how the habeas corpus appeals of my sister' murderers had languished in Nixon's court for nine years. Sasser's letter stated that ''The Chief Judge of each circuit court of appeals may hear complaints of judicial misconduct and appoint a judicial council to further investigate such complaints.''
Gilbert Merritt, of Nashville, was the 6th Circuit Chief Judge at that time. In a letter Merritt asked Nixon to respond to some of the delays determined by court records submitted with my complaint: Rickman v. Dutton 4 & 2 years of inactivity, Houston v. Dutton 16 months x (2) & 14 months inactivity, Morris v. Dutton 18 & 6 1/2 months of inactivity, Austin v. Dutton 5 1/2 & 9 months inactivity, Strouth v. Morgan 10, 13 & 14 months of inactivity. Merritt also asked Nixon to respond to an award he had accepted from an anti-death penalty group which was also brought out in the complaint.
Nixon's excuses included such statements as ''respondent filed several motions to continue and extend the time to file its answer,'' ''respondent eventually filed an answer,'' ''all directly attributed to the manner in which the parties engaged in discovery,'' ''neither party notified the Court that petitioner's state post-conviction proceedings had terminated,'' ''any delay was caused by other civil cases then pending on the Court's docket and/or the parties' failure to advance the case without direction of the Court,'' ''the press of other civil cases then pending,'' ''complex civil cases that have been difficult to move.''
Merritt dismissed the complaint even though he found that the delays ''were excessive and should not have occurred.'' He said, ''Judge Nixon has now taken corrective action as his response makes clear, to decide promptly the capital cases that remain on his docket. I have no reason to believe that further unwarranted delays will occur. Appropriate action having been taken to remedy the problem raised by the complaints (there were 11 others filed), I have determined that it is appropriate to close that aspect of the complaints pursuant to 28 U.S.C. 372(c)(3)(b).'' I could not see where Nixon had made it ''clear'' that he had ''taken corrective action,'' or any action at all, or that he was going to be ''deciding promptly'' the capital cases that remained on his docket. Nixon's Letter said, ''The Tennessee Attorney General's office and the attorneys representing death penalty habeas corpus petitioners are presently moving these cases at a steady pace. Answers and dispositive motions are being filed by the state and are promptly responded to by petitioners. Scheduling orders are being entered and evidentiary hearings are being set. I forsee that these cases will move at the came pace as other civil litigation before this court.''
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My complaint cited the U.S. Supreme Court 1992, In re Blodgett, 112 S. Ct. 674,676, ''The delay in this case demonstrates the necessity for the rule that we now make explicit. In a capital case the grant of a stay of execution directed to a state by a federal court imposes on that court the concomitant duty to take all steps necessary to ensure a prompt resolution of the matter, consistent with its duty to give full and fair consideration to all of the issues presented in the case.'' In other words it is the judges duty to give death penalty cases priority and move them along! Yet, in 1995 Nixon makes the previously mentioned statement and also said, ''the parties through their attorneys have the primary responsibility for moving them forward. A Judge can only act when the parties have filed the appropriate pleadings.'' I believe the judge can tell the parties to ''get moving or he's going to throw out the case!'' After all, that is what the 6th Circuit told Nixon in 1993 after the TN Attorney General sought a writ of mandamus that forced Nixon to move or lose the stay of execution for one of my sister's murderers.
As to the award issue in the complaint, Merritt said, ''It was not an award. It was a letter or document of approval from a nonpartisan group which had not previously stated a controversial point of view on political or legal issues.'' In my appeal to the 6th Circuit Judicial Council I submitted a newspaper clipping, dated prior to the award, which was titled ''Group Condemns Death Penalty.'' The article said the group ''maintains the death penalty should never be imposed regardless of the circumstances involved.'' The appeal also included a copy of court transcripts the day the award was given, where Nixon told of the ''award'' he received earlier in the day.
Merritt had said the U.S. Supreme court had not made it explicit, until Blodgett in 1992, that it was the duty of a federal court to give prompt resolution to capital cases. In my appeal I brought out the writ of mandamus that had been issued after 1992 and said, ''I refuse to accept that the excessive delays found by Judge Merritt could ever be acceptable conduct. 'Justice delayed is justice denied' is not a concept that arose after 1992.''
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The 6th Circuit Judicial Council upheld Merritt's dismissal, even though they ''did not condone the delays.'' They also said that too much time had passed since the award had been given to ''warrant action now.'' I could not believe their audacity to use ''time'' as an excuse when ''time'' was the very basis for the complaint, and at the ''time'' the award was presented was the same ''time' Nixon started granting the stays of execution, establishing what was going on with him at that ''time!''
Another issue that arose during all of this was the fact that Judge Nixon was a guest in Judge Merritt's home during the time Merritt was considering the complaint. I wrote to the 6th Circuit asking Merritt to recuse himself and refer the complaint to a committee of judges not of this (TN) district, I felt this occurrence was a conflict of interest and understood that courts were to avoid even the appearance of a conflict of interest. I had read in rule 4(a), ''The chief judge shall promptly appoint himself and equal numbers of circuit and district judges of the circuit to a special committee to investigate the facts and allegations contained in the complaint.'' From reading this and from what Senator Sassor had said, I assumed that Merritt would be assigning a committee of judges to investigate the complaint. Fearing conflict, I was trying to see that none of these judges would be from Tenn. What I did not know was that Merritt had other options and would not be appointing a committee to investigate. That one action, or lack there of, was going to prevent the complaint from being reviewed outside of the 6th Circuit, outside the area of conflict. Senator Grassley questioned the U.S. Judicial Conference in 1996 and found that in the 3,029 complaints that had been filed within the past ten years, only 30 were investigated by the ''special committee.'' This means that only 1% of the 3,029 complaints ever had a chance of being reviewed outside an area of conflict because of this loophole in the rules. The chief judges know this will keep complaints ''within their circle.'' This loophole guarantees that ''the buck will stop here.''
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The federal judiciary clamors that they must remain independent, yet they will not police themselves. They are appointed for life and are not accountable to anyone. Can they not see why the people have lost faith in them, why they want term limits placed on them, why they want Congress to exercise their impeachment authority? The judiciary seems to be asking Congress to step in. I know I certainly am.
Mr. BRYANT. In discussing the hearing, I was bragging outside to someone how great it was to have this hearing, and I am grateful to the chairman for scheduling this hearing and for bringing before it such a diverse panel of witnesses, certainly what I call the ''ivory tower,'' Mr. Fein, the ivory tower folks who deal in theory, and so forth, down to Ms.and I don't mean down on a levelbut to Ms. Stout, who has the very real world experience of suffering through a situation where her daughter was, at 8 years old, kidnapped, raped, and after she was raped, made the statement to her killer that Jesus loved him, and then he slit her throat after that. And we know that because he confessed to it. Those kinds of experiences should be shared with this committee, because what we're taking on is a very important issue in trying to find that balance between judicial independence, which we all want, and when judicial misconduct or maybe judicial activism goes too far.
Quite frankly, Mr. Fein, I find your standard that a judge has to openly confess in court that he will not obey his constitutional oath somewhat high. We don't have the benefit of Perry Mason here, cross-examining and getting that confession before the TV show's over; I just don't think that's going to work. I think we do have a serious duty, though, as this committee, to look into our constitutional mandates.
Page 126 PREV PAGE TOP OF DOC And I want to ask Mr. Jipping the question. I think he's been unfairly questioned todaycross-examined, if you willand not allowed to properly answer the questions. I know he came unprepared, as I doubt anybody on this committee, even Mr. Frank or Mr. Delahunt, could sit here and relate the complete record of any judge and make an opinion today as to whether that judge ought to be impeached. I think the caution of which you're talking, that we ought to review the whole record, I certainly endorse. But I would like to ask Mr. Jipping: under the Constitution there are generally two points that I think allow impeachment by the Congress of Federal judges. One is the general standard of high crimes and misdemeanors, but also the other one which provides lifetime tenure upon good behavior, one that's kind of cast aside, and I think has caused this Congress over the last many decades to say that unless you catch a judge burglarizing a house or failing to pay his or her income tax, then you can't impeach that judge. Certainly, to me, good behavior doesn't mean that, especially when you consider there's also the provision of high crimes and misdemeanors.
What is your view on those two? Are we limited? Can Congress only impeach under circumstances of a crime that's either a high crime or a misdemeanor, indictable-type offense?
Mr. JIPPING. Well, the phrase, ''high crimes and misdemeanors'' has had already a 400-year history when the Framers put it in the Constitution. It hadit was used in the English common law. It had never meantit had neverin 600 years it has never been confined to indictable offenses. I mean, we make the mistake today that activist judges do, if we simply take a phrase in the Constitution and make it mean whatever we want it to mean today instead of what it does mean. It has never meant in 600 years that impeachable offenses are limited to indictable offenses.
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The reading that I have done with respect to the good behavior reference, most of the opinion tends to be that rather than being a substantive standard separate from high crimes and misdemeanors for impeachment, that good behavior is a designation that judges, as opposed to members of the other branches of government, do not have determinate terms. In other words, it's not a separate, substantive standard that needs further definition as an impeachment standard. Basically, that view says, service during good behavior means service until you're impeached, service until you're either removed or, of course, you can quit on your own. And I tend to lean toward that view; that that's basically a separate designation of the kind of office that judges serve; it is an indeterminate, not an elected set term. The high crimes and misdemeanors is still the impeachment standard for all public officials, but it has never been limited to indictable offenses.
Mr. BRYANT. Thank you. As I conclude, I, again, want to publicly thank my colleague from Tennessee, John Tanner, for allowing and making Ms. Stout available today and for his cooperation in this very needed hearing. Thank you.
Mr. COBLE. And we're glad to have you join us, too, Mr. Bryant, as an honorary member for today.
When I referred to the Chairman Hyde's bill, 1252, in extending Mr. Delahunt's comment, what I intended to imply to you all, or to say to you, is that in that billand, Chairman Hyde, you can correct me if I incorrectly interpret itit does provide for us to consider remedies less severe than impeachment in addressing problems where judges may havefor want of better way of saying itgone too far.
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And, Mr. Jipping, when I said to youwhen I quoted Gerald Ford's comment to you, and I implied that I probably agreed with thatmaybe I should clarify that; in some instances I might agree with it, and then again, I might not. Technically speaking, I guess that does constitute impeachment if a majority comes forward.
Mr. JIPPING. And I didn't take it that way.
Mr. COBLE. OK.
Mr. JIPPING. I think actually that that kind of a phrasing is what has tended toit's encouraged people to view impeachment as being just something othernothing more than a petty partisan political tool; whether he meant it that way or not, that's the way it sounded, and that's why I don't think that it
Mr. COBLE. And I wanted to clarify that, and I'm glad you read it correctly.
Mr. JIPPING. And there are many other ways of dealing with judicial excess than impeachment. I didn't take this to be an impeachment hearing per se. In the 5 minutes I had I brought that one up, but there are many ideas being discusseda couple of them Mr. Delahunt brought up, toothat are ways of addressing various aspects of the problem.
Mr. COBLE. Well, I think this has been a very good hearing thus far, and you all have contributed in no small way to that end, and we thank you for your attendance, and we may be contacting you subsequently. Good to have you with us.
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Mr. TANNER. Thank you, Mr. Chairman.
Mr. COBLE. Thank you for joining us, too, John.
If the final panel will wind its way to the tablelet's bring the committee to order, and we will seat our final panel for the day. Let me read some biographical information that will be of interest to our subcommittee and to our audience.
The first witness for our final panel is Professor LinoGraglia?
Mr. GRAGLIA. It's Lino Graglia.
Mr. COBLE. Graglia.
Mr. GRAGLIA. Lino Graglia.
Mr. COBLE. Lino, of the University Texas School of Law, one of the best State schools of law in the country, Professor, and maybe one the best schools of law, period, but I've always been high on your school of law.
Professor Graglia received his B.A. from the City College of New York and his L.L.B. from Columbia University School of Law. The professor has worked for the U.S. Department of Justice, and practiced law in Washington, DC, and New York. His course instruction at Texas focuses on constitutional law and antitrust law.
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Our second panelist for today is Dr. Roger Pilon.
Mr. PILON. That's Roger Pilon.
Mr. COBLE. Pilon. Dr. Pilon is a senior fellow at the Cato Institute and is the founder and director of Cato's Center for Constitutional Studies. Dr. Pilon did his undergraduate work at Columbia University earning his B.A. in philosophy in 1971, and received his master's and doctorate degrees from the University of Chicago. In 1988, he earned a J.D. from the George Washington University School of Law.
Our third witness is Mr. Wade Henderson. Mr. Henderson is the executive director of the Leadership Conference on Civil Rights, and Mr. Henderson is a graduate of Howard University and the Rutgers University School of Law.
Our final witness is Circuit Judge Randall R. Rader, U.S. Court of Appeals for the Federal Circuit, representing the Federal Judges Association. And I didn't know that you were going to be here until a few minutes ago, but in the effort of fairness, we're happy to have you here, and I think that will add to the balance of our panel.
Mr. Henderson, why don't we start with you? And, by the way, gentleman, it's good to have you all with us, and if you will, keep in mind your entire testimony will be made a part of the record, and we have the constrictive 5-minute rule here that we like to comply with. When you all see the red light illuminate, that is your warning that your 5 minutes have expired. You will not be punished in any way for having violated that, but if you can wind down shortly after that light appears, we will be appreciative.
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STATEMENT OF WADE HENDERSON, EXECUTIVE DIRECTOR, LEADERSHIP CONFERENCE ON CIVIL RIGHTS
Mr. HENDERSON. Thank you, Mr. Chairman and members of the subcommittee. Good morning.
I am Wade Henderson, the executive director of the Leadership Conference on Civil Rights. On behalf of the Leadership Conference, I appreciate the opportunity to appear before you today to reaffirm the importance of our Federal courts in safeguarding the constitutional and civil rights of all persons in the United States.
Chief Justice William Rehnquist himself has called the principle of judicial independence ''one of the crown jewels of our system of government,'' and we urge this subcommittee to protect our Nation's crown jewels, and to resist improper efforts in the name of either judicial misconduct, discipline, or activism to undermine justice in America.
The Leadership Conference on Civil Rights is the Nation's oldest, largest, and most diverse coalition of organizations committed to the protection of civil and human rights in the United States. Today, the Leadership Conference has over 180 national organizations that work together in resolving the civil rights problems of the day.
The Leadership Conference holds as two of its guiding tenets that all citizens of the United States must be treated equally under the law and that all persons are entitled to the protection of the Constitution. Our Nation's Federal courts have played a critical role in carrying out both fundamental principles. From the Supreme Court's historic decision striking down school segregation in Brown v. the Board of Education to the individual rulings by courageous appellate and district court judges like Frank Johnson and Elbert Tuttle concerning discrimination in schools, housing, and public facilities, the Federal courts have enforced the mandates of our Constitution and laws even when their decisions may have been politically unpopular with some in the short run.
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Now recently, however, we have heard renewed sounds of ideological discontent and troubling words concerning several decisions by our Federal courts. As reflected in today's subcommittee hearing, for example, some have suggested that Congress should explore the possible impeachment of several Federal district judges, based not on high crimes and misdemeanors or on the ethical or legal violations of any of these individuals, but, instead, on the purported basis that nothing more than what amounts to a disagreement with a single decision by each of these judges relating to civil and constitutional rights.
Now, for example, Judge Felton Henderson of Californiawho, by the way, is of no relation to mehas been targeted for possible impeachment simply because he issued a temporary restraining orderwhich has since been overturned though still on appealagainst California's recently approved antiaffirmative action voter initiative known as proposition 209. Judge Henderson and other Federal judges have been labeled by some as judicial activists merely because they ruled that a particular governmental action, statute, or referenda was unconstitutional. But this criticism ignores the very nature of our constitutional system, and in that regard I'd like to associate myself with the previous statement of Bruce Fein which I think amplified on that issue quite effectively.
And, moreover, federally-protected constitutional rights cannot be determined by voter referendum. If the voters of a particular State, for example, elected to pass an initiative which sought to reinstitute slavery as directed against selected members of society, surely no one would suggest that that voter initiative would carry or should carry constitutional weight. The very purpose of our Constitution is to ensure that violations of precious individual rights and harm to racial or other minoritiesinsular or discrete minorities within the meaning of the Constitutiondoes not take place even if the majority in a particular State legislature or election group thinks they should. The Constitution gives the Federal courts an important role to play in that system of checks and balances, and fulfilling that role is not judicial activism.
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Now, as Alexander Hamilton said in the Federalist Papers, it is one of the duties of the judiciary to declare ''all acts contrary to the manifest tenor of the Constitution void.''
Many Americans have short memories when it comes to our Nation's recent history, and to those of us in the civil rights community, the attacks on the courts today that we are hearing remind us all too chillingly of the deplorable period in our Nation's history some 40 years ago. You may recall that when Chief Justice Earl Warren wrote the unanimous Supreme Court decision striking down State-mandated school segregation in Brown, defenders of segregation cried ''judicial activism.'' For example, on March 12, 1956, 81 Members of the House of Representatives signed a resolution condemning Brown as ''a clear abuse of judicial power,'' and as part of an alleged ''trend in the Federal judiciary to legislate, in derogation of the authority of Congress, and to encroach upon the reserved rights of the people.'' Signs went up around the country demanding that Congress impeach Earl Warren.
Mr. Chairman, your predecessors wisely resisted those efforts to demand an impeachment, and Brown is today recognized as a just and correct decision. I read Professor Graglia's testimony on Brown, and quite the contrary, Brown was not an example of judicial activism. Indeed, it overturned a previous Supreme Court decision in Plessy v. Ferguson, which was itself an example of the kind of judicial activism which is now being deplored.
Mr. Chairman, I will wrap up my testimony, because I see that I have reached my 5-minute rule, but let me suggest, in conclusion, that the statements that are being made today about establishing a vigorous new review of the Federal court judges and their decisions, it seems to us, is grossly unnecessary, given the existence of mechanisms within the judiciary to handle many of the issues that have been identified today as problems. When judges exceed their authority, there are administrative mechanisms within the courts to address those issues. To do otherwise on the part of Congress really does represent a violation of the worst kind of the separation of powers requirement of our Constitution.
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Thank you, Mr. Chairman, for this opportunity.
[The prepared statement of Mr. Henderson follows:]
PREPARED STATEMENT OF WADE HENDERSON, EXECUTIVE DIRECTOR, LEADERSHIP CONFERENCE ON CIVIL RIGHTS
Mr. Chairman and members of the Subcommittee, I am Wade Henderson, Executive Director of the Leadership Conference on Civil Rights (LCCR). On behalf of the Leadership Conference, I appreciate the opportunity to appear before you today to reaffirm the importance of our federal courts in safeguarding the Constitutional and civil rights of all persons in the United States. Chief Justice William Rehnquist himself has called the principle of judicial independence ''one of the crown jewels of our system of government.'' We urge this Committee to protect this nation's crown jewels, and to resist improper efforts in the name of ''judicial misconduct, discipline, or activism'' to undermine justice in America.
The Leadership Conference on Civil Rights is the nation's oldest, largest and most diverse coalition of organizations committed to the protection of civil and human rights in the United States. The Leadership Conference was created by A. Philip Randolph, Arnold Aronson, and Roy Wilkins in 1950 as an independent body to promote passage and the implementation of civil rights laws designed to achieve equality under law for African Americans and to improve the quality of life for all Americans.(see footnote 11) Today the LCCR has over 180 organizations that work together in resolving the civil rights problems of the day. These organizations include groups representing persons of color, women, labor organizations, persons with disabilities, older Americans, gays and lesbians, major religious groups, and civil liberties and human rights interests.
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The Leadership Conference holds as a guiding tenet that all citizens of the United States must be treated equally under the law. Our nation's federal courts have played a critical role in carrying out that fundamental principle. From the Supreme Court's historic decision striking down school segregation in Brown v. Board of Education to the individual rulings by courageous appellate and district court judges like Frank Johnson and Elbert Tuttle concerning discrimination in schools, housing, and public facilities, the courts have enforced the mandates of our Constitution and laws, even when their decisions may have been politically unpopular with some in the short run.
Recently, however, we have heard renewed sounds of ideological discontent and troubling words concerning our federal courts. For example, recent press reports have suggested that plans were being considered in the 105th Congress to explore the possible impeachment of several federal district judges. If the inquiry proceeds, these judges will not be charged with ''high crimes and misdemeanors;'' nor will they be accused of ethical or legal violations. Instead, the purported basis for this action will be nothing more than what amounts to disagreement with a single decision by each of these judges relating to civil and constitutional rights. For example, Judge Thelton E. Henderson of California has been targeted for possible impeachment simply because he issued a temporary restraining order, which has since been overturned though still on appeal, against California's recently approved anti-affirmative action Voter Initiative, Proposition 209.
Judge Henderson and other federal judges have been labeled by some as ''judicial activists'' because they ruled that particular governmental action, statutes, or referenda were unconstitutional. But this criticism ignores the very nature of our constitutional system. Moreover, federally protected constitutional rights cannot be determined by voter referendum.
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The very purpose of our Constitution is to ensure that violations of precious individual rights and harm to racial and other minorities do not take place, even if a majority in a particular state legislature or election thinks they should. The Constitution gives the federal courts an important role to play in that system of checks and balances, and fulfilling that role is not judicial activism. As Alexander Hamilton wrote in the Federalist papers, it is one of the duties of the judiciary to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights and privileges would amount to nothing.
Many Americans have short memories when it comes to our nation's recent history. To those of us in the civil rights community, these recent attacks on the federal courts remind us all too chillingly of a deplorable episode in our nation's civil rights history some 40 years ago. When Chief Justice Earl Warren wrote the unanimous Supreme Court decision striking down state-mandated school segregation in Brown, defenders of segregation cried ''judicial activism'' across the South and across the country. For example, on March 12, 1956, 81 members of this House signed a resolution condemning Brown as a ''clear abuse of judicial power,'' and as part of an alleged ''trend in the federal judiciary to legislate, in derogation of the authority of Congress, and to encroach upon the reserved rights of the people.'' Signs went up around the country demanding that Congress ''impeach Earl Warren.''
Mr. Chairman, your predecessors wisely resisted those shameful demands, and Brown is widely recognized today as a just and correct decision. But seeking to impeach Judge Henderson and his colleagues for their decisions today is as improper in its own way as it was for those who opposed desegregation 40 years ago.
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In that regard, I am also troubled by at least one provision in the legislation H.R. 1252 discussed before this Committee yesterday. Section 5 of that bill appears to limit the authority of any court to enter any order that would require the levying of any taxes, even when necessary to remedy a constitutional violation. In an attempt to resist desegregation after Brown, however, some school districts literally refused to levy taxes to fund their school systems, which required the courts to intervene to uphold the Constitution. The Supreme Court specifically ruled that such an order was necessary and proper in Griffin v. Prince Edward's County School Bd., 377 U.S. 218 (1964). The Court has already made clear that this authority of the courts is limited; and Congress should tread with extreme caution in this area.
I also want to make it clear, Mr. Chairman, that the Leadership Conference is not suggesting that we must all simply accept any ruling from any federal court in the area of civil or constitutional rights, or that such rulings and the judges who issue them cannot be challenged or criticized. Far from it. For example, when a conservative majority on the Supreme Court of the United States issued a series of rulings which misinterpreted and severely damaged civil rights laws passed by this Congress, displaying what some might call ''conservative judicial activism,'' the Leadership Conference helped lead the effort that resulted in Congress enactment of the Civil Rights Act of 1991, which reversed the effects of many of these improper decisions. That is also part of the systems of checks and balances. Court opinions with which we disagree can be criticized, appealed, and counteracted or overturned by Congressional or Executive branch action where appropriate. Indeed, while the Leadership Conference believes that Judge Henderson's decision on Proposition 209 was correct, that decision has recently been reversed on appeal, and is now being considered by the full Ninth Circuit Court of Appeals.
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But whatever we may think or try to do about an individual judge's decision, it is fundamentally wrong to threaten to impeach a judge because we may disagree with that decision. That point was made last year by Chief Justice Rehnquist, and more recently by the leaders of 76 national, state, and local bar associations, who wrote to Speaker Gingrich. They wrote:
The genius of the American system of government is the careful balance created by the Founders between the three branches of government. Moving to impeach judges for individual decisionsa kind of legislative referendum on judicial decision-makingthreatens to destroy this delicately crafted balance.
For the sake of justice and equality as guaranteed for all by our Constitution and laws, we agree. The Leadership Conference is proud to support the principle of judicial independence.
Finally, let me add one more point. We recognize that under the Constitution, it is the responsibility of the President and the Senate, not the House of Representatives, to nominate and confirm federal judges. But it is a problem for all of us when there are 100 vacancies on our federal courts, delaying justice for Americans across the country. We urge members of this Committee to join with the Leadership Conference in urging the Senate and the President to take action to nominate and confirm qualified men and women to fill these vacancies promptly so that justice will not be improperly delayed in our federal courts.
Thank you very much.(see footnote 12)
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Mr. COBLE. I thank the gentleman.
STATEMENT OF ROGER PILON, PH.D., J.D., SENIOR FELLOW AND DIRECTOR, CENTER FOR CONSTITUTIONAL STUDIES, CATO INSTITUTE
Mr. PILON. Yes, thank you, Mr. Chairman, and I'm especially grateful to you, Mr. Chairman, for offering me this opportunity to present what I told your counsel was the third position on this issue of judicial activism.
Mr. COBLE. Well, we're grateful for you all responding. Good to have you with us.
Mr. PILON. In saying that much I have already indicated that I am critical of both the standard conservative position on the issue and the standard liberal position on the issueindeed, the position that I am about to set forth to you in summary at least is, to my mind, much closer to what the Founders had in mind when they instituted our legal system to begin with.
Now I understand that these hearings have been called to discuss the issue of judicial misconduct and discipline; but the underlying issue, of course, is ''judicial activism'' and the cry that we have heard about this problem of judicial activism for at least 40 years in this country, but especially of late. I am sympathetic to much of that complaint about judicial activism, but at the same time I do think it's very much overstated, and it is also, more importantly, misstated.
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To make my points with respect to those two specific points, however, let me just step back a little bit and look at our system of government generally. We have, indeed, a set of documents to repair to to get a clear picture of what the Framers had in mind when they set this Nation in motion over 200 years ago. With the Declaration of Independence we have the broad moral principles that define us as set forth there, the idea of equality of rights, of individual liberty, and government instituted to secure those rights. We have, then, the Constitution, 13 years later, which was the document through which we reconstituted ourselves, and when we look at the Constitution, the Bill of Rights that was added 2 years later, and in particular, the Civil War amendments, which fundamentally rearranged the structure between the Federal Government and the States, we have a philosophy of government that comes forth that is really striking in its originality, its simplicity, and its intellectual power.
Article 1 sets forth your own powers, the legislative branch, where power is authorized; and, indeed, the very first sentence of article 1 begins, ''All legislative power herein granted shall be vested in a Congress.'' That point is reiterated in the 10th amendment, the final member of the Bill of Rights, which makes it clear that you have only those powers that have been delegated to you by the people, enumerated in the Constitution, and, hence, your power is not only delegated and enumerated, but limited by virtue of that delegation and enumeration.
Article 2 sets forth the power of the executive to enforce that powerthose provisions that have flowed from your power.
Article 3 gives us judicial review, not explicitly, but certainly implicitly, as the Federalist Papers make clear, as Marbury v. Madison made explicit. Indeed, this power of the judiciary was almost novel at the time. There was, of course, Dr. Bonham's case in 1610 where Lord Cook exercised judicial review, and a few subsequent exercises of it, but it was relatively limited.
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Ours was the first true experiment in judicial review, and the role of the judiciary is to oversee the other two branchesto make sure, first, that their power proceeds from authority; second, with respect to the Congress, that when pursuing enumerated ends or powers, that the means chosen be necessary and proper; and third, that the exercise of that power be consistent with the rights that are enumerated in the Constitution, in the Bill of Rights, and subsequentlyand with unenumerated rights as well, as the ninth amendment makes clear.
Finally, article 5, if things aren't working out, gives us a way to correct all this through the amendment process.
Now, the point about the judiciary that I just made gives rise to the question: Can they abuse that power? Of course they can. Do they abuse it? Yes, they do. Are there things that can be done about it? Yes, but we have to be extremely careful about what we do.
Let me, then, turn to my central points about overstatement and misstatement. I do believe that the critics of judicial activism have very much overstated the matter. As Congresswoman Lofgren said in her remarks during the last panel, even the CCRI case, which is taken to be a blatant example of judicial activism, is one in which Judge Henderson did tie his opinion to a pair of cases. Now, that case is working its way up through the system; it will be reviewed, when it gets to the Supreme Court, if the Supreme Court grants cert. The Court will distinguish or overrule that pair of cases, but the system is working as it was intended to work. It was not an example of judicial activism proper; it was a strain, to be sure, and, indeed, was overruled three to nothing, but still it does not fall into that category of judicial activism proper.
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The other side too has misstated the issue, and this is the most important part, because they have constantly couched judicial activism as a matter of the judiciary standing athwart the majority. That is exactly what the judiciary is charged to do, for the most part, sitting as a constitutional court. Its job is to review the other two branches to make sure that they're acting within their authority. Here, indeed, you find the conservatives going back to the progressive era and New Deal conceptions of government, which is striking. They generally are thought to be for limited government, and yet, the view set forth by Robert Bork and set forth by Professor Graglia in his statement before the subcommittee is one that cannot be countenanced if you look at the Constitution seriously. It is a view that has it that the Government has vast powersthe Madisonian dilemma, they say, is that in wide areas majorities have a right to rule simply because they are majorities, whereas in some areas the individual must be protected. That has it exactly backwards. Madison had it just the other way around. Indeed, to reduce it to its simplest, Graglia and Bork are saying, ''Whatever isn't prohibited to Congress is permitted.'' That's exactly wrong. The rule is ''Whatever is not permitted is prohibited.'' That's what the doctrine of enumerated powers is all about; that's what the 10th amendment is all about.
Accordingly, when we go back to the history of the matter, we find that the New Deal was the crucial watershed. What the Court did in 1937 and 1938 was turn the Constitution on its head. Whereas, it was a document of enumerated powers restrained by both enumerated and unenumerated rights, they turned it into a document of effectively unenumerated powers, which were then subsequently interpreted broadly; the conservatives on the Court interpreted our rights narrowly, liberals on the Court interpreted our rights episodically. My view is that we need to return to a proper interpretation of the Constitution as a document of enumerated powers.
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And so, this issue that we're talking about today of judicial activism is really part of a much larger issue, that larger issue being overweening government. When we have the surfeit of legislation that you people have sent out over the past 60 years, since the New Deal court turned the Constitution on its head, it is no surprise that we have the judiciary being called upon to adjudicate often inconsistent, incoherent laws, which invite themfairly invite themto make all manner of value judgments, after which they can be seen to be doing nothing but legislate. The problem, in short, begins right here in Congress, and the answer is to start returning to the constitutional principles of limited government, the doctrine of enumerated powers.
And if you set the tone in that, it is my view that you will find the judiciary following in tow. The judiciary does not act in a vacuum; the judiciary acts within a political domain, and if you set the tone of limiting government, restraining your own legislative appetites, then I think that we will find that this issue will correct itself over time.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Pilon follows:]
PREPARED STATEMENT OF ROGER PILON, PH.D., J.D., SENIOR FELLOW AND DIRECTOR, CENTER FOR CONSTITUTIONAL STUDIES, CATO INSTITUTE
Mr. Chairman, distinguished members of the subcommittee, my name is Roger Pilon. I am a senior fellow at the Cato Institute and the director of Cato's Center for Constitutional Studies.
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I want to thank Chairman Hyde of the committee and Chairman Coble of the subcommittee for their invitations to me to testify on the important issue of ''Judicial Misconduct and Discipline.'' These hearings have been called, I understand, because of a concern that a number of people have expressed about ''judicial activism''the practice by judges of applying to cases before them not the law but principles or values that are no part of the law. Because such a practice is thought by many to constitute judicial misconduct, some in Congress are searching for ways to discipline it.
At the outset, let me summarize my thoughts on this subject, then discuss it in somewhat more detail. There can be no question that judicial activism, as just described, has been a problem in our legal system for some time. The power of the judiciary under our Constitution to declare the law and decide cases under that law is awesome; when abused, that power is too often beyond reach. At the same time, I believe that many of those who have complained most often about judicial activism have overstated and misstated the problem, thus distracting us from the real issuelegislative activism on the part of Congress, which leads to judicial activism.
Overstating the problem. Many of the examples of ''judicial activism'' that are cited turn out, when examined more closely, not to be cases in which the judge failed to apply the law but applied the law differently, or applied different law, to reach a result different than the result thought correct by the person charging activism. To be sure, there is no bright line between failing to apply the law and wrongly applying the law or applying the wrong law, but when that distinction is drawn, it turns out that there are fewer cases of true judicial activism than at first may appear.
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Misstating the problem. More importantly, the problem of ''judicial activism'' is seriously misstated when it is cast, as it often is, as involving judges overruling the will of the people. In our legal system, judicial review often requires a judge to do just that. In such a case, were the judge to defer to the political will, exercising ''judicial restraint'' when the law requires active judicial intercession, that restraint would itself be a kind of activism, for it would amount to an ''active'' failure to apply the law in deference to democratic or majoritarian values. The judge in such circumstances would be shirking his judicial responsibilities every bit as much as if he overrode a legitimate exercise of political will in the name of other values.
Thus, as terms of art, judicial ''activism'' and ''restraint'' can be quite confusing and even misleading. What is more, they are often used in ways that camouflage the real issues. What we all want, I assume, is judges who are neither ''active'' nor ''restrained'' but ''responsible''responsible to the law. But when the law is unclear or inconsistent, judicial responsibility may be difficult to achieveand ''activism'' inevitable. In the end, therefore, our substantive law may be the ultimate source of the problem before us today. That, in fact, is what I will argue shortly. Let me begin, however, with a brief overview of the complaints.(see footnote 13)
II. THE CRITICS OF JUDICIAL ACTIVISM
Complaints about ''judicial activism,'' however formulated, can be found from our inception as a nation. In their modern form, however, they have come largely since the advent of the Warren Court and most often from political conservatives. My fellow panelist today, Professor Lino Graglia, with whom I have debated the issue more than once, has put the complaint starkly:
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...the thing to know to fully understand contemporary constitutional law is that, almost without exception, the effect of rulings of unconstitutionality over the past four decades has been to enact the policy preferences of the cultural elite on the far left of the American political spectrum.(see footnote 14)
''That is exactly right,'' comments Judge Robert Bork in his recent best-seller, Slouching Towards Gomorrah, ''and the question is what, if anything, can be done about it.''(see footnote 15) I gather that these hearings are a partial answer to that question.
The bitter confirmation battle that followed Judge Bork's Supreme Court nomination a decade ago had a way of concentrating the issue for many, of course. Still, the issue has been in the air since the 1950s, covering subjects as various as civil rights, apportionment, federalism, speech, religion, abortion, education, criminal law and procedure, and much else. And in each case, the complaints from conservatives have been essentially the same.
Speaking before the Federalist Society's 10th anniversary lawyers convention last November, for example, Senator Orrin Hatch, chairman of the Senate Judiciary Committee, summarized the issue from his perspective:
What is at stake ... is nothing less than our right to democratic self-government as opposed to ... ''Government by Judiciary.'' For when we commission judicial activists who distort the Constitution to impose their own values, policy preferences, or visions of what is just or right, we are in effect sacrificing our ability to govern ourselves through the democratic political processes to the whims and preferences of unelected, life-tenured platonic guardians.(see footnote 16)
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Judges ''must interpret the law, not legislate from the bench,'' Senator Hatch continued. ''A judicial activist, on the left or the right, is not, in my view, qualified to sit on the federal bench.''(see footnote 17)
In a similar vein, little more than two months ago Senator John Ashcroft, chairman of the Constitution Subcommittee of the Senate Judiciary Committee, told the Conservative Political Action Conference at its annual meeting that it was time ''to take a broader, comprehensive look at the alarming increase in activism on the court.''(see footnote 18) Asking what we can do to put an end to ''judicial tyranny,'' Senator Ashcroft called for rejecting ''judges who are willing to place private preferences above the people's will.''(see footnote 19)
Not to be outdone by the Senate, on March 11 House Majority Whip Tom DeLay told editors and reporters at the Washington Times that ''as part of our conservative efforts against judicial activism, we are going after judges'' and are ''right now'' writing articles of impeachment.(see footnote 20) Those sentiments were echoed two days later by Congressman Bob Barr of this subcommittee when he appeared on CNN's ''Crossfire.'' Clearly, perhaps as never before, the issue of judicial activism is on the nation's agenda.(see footnote 21)
III. OVERSTATING THE PROBLEM
Page 148 PREV PAGE TOP OF DOC It is not entirely clear just what has brought the judiciary and its methods to the nation's attention at this point in time. Cynics point to the need for somethingsome issuein a drifting Republican Party: ''The revolution is in the doldrums. Nobody's got a plan; nobody's got a direction.''(see footnote 22) Others, however, have noted a rising frustration among conservatives over their relative ineffectiveness on the judicial front despite having dominated the judicial selection process since the Nixon years.(see footnote 23) And still others cite a series of recent cases that have seemed to crystalize complaints about judicial activism: the district judge who stayed the California Civil Rights Initiative (CCRI);(see footnote 24) the New York judge who suppressed evidence in a drug case, saying the police had no reason to stop the suspects;(see footnote 25) the decision by the Supreme Court that the Virginia Military Institute had to become coeducational.(see footnote 26)
Looked at in broad perspective, there can be no question that the drift in American law over the past 40 years and more has been in large part to the left, as that term is ordinarily understood. And a good part of that drift has resulted from court decisions. Yet by no means can all or even most of the drift be attributed to the courts. Moreover, even that part that has resulted from court decisions does not arise entirely or even primarily from ''judicial activism''not unless that idea is stretched to include every decision that conforms to some leftist political agenda.
In fact, when we look at most such decisions closely, we rarely find that the judge or justices ''legislated.'' To be sure, they often reach results consistent, if not with their ''whims,'' at least with their ''values, policy preferences, or visions of what is just or right.'' But those results can usually be tied to some legal anchor, even if it takes some stretch to do so.
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Take the recent CCRI decision by U.S. District Court Judge Thelton Henderson, which enjoined enforcement of the initiative shortly after it was passed by some 54 percent of California's voters. Many critics of the judiciary immediately pointed to the decision as a blatant example of judicial activism. Judge Henderson's opinion was a stretch, to be sure. But it was not without legal foundation, citing Hunter v. Erickson, 393 U.S. 385 (1969) and Washington v. Seattle School District No. 1, 458 U.S. 457 (1982). Moreover, as we know, the case has taken the normal appellate course; the decision has since been reversed by the U.S. Court of Appeals for the Ninth Circuit;(see footnote 27) and plaintiffs have just filed a petition for certiorari with the Supreme Court. We are likely to learn from the Court whether the cases Judge Henderson relied upon in fact apply or are still good law. In the meantime, however, we are hard pressed to say that his decision was ''lawless,'' however strained it may have been.
One could review putative cases of judicial activism almost ad infinitum, of course, but the fact remains that the better part of such cases do not exhibit judicial lawmaking, just better or worse judicial reasoning. It is no small irony, however, that when we do come across a genuine case of blatant judicial activism that cuts the other way, politically, many conservative critics of the judiciary are strangely silent. That was pointed out just last week, for example, by conservative constitutional scholar Bruce Fein in an op-ed in the New York Times, citing the current controversy over the decision of an Alabama state judge to defy a long line of Supreme Court rulings on the separation of church and state ''by posting a copy of the Ten Commandments in his courtroom and inviting clergy to lead juries in prayer,''(see footnote 28) even after a state appellate court found the practices unconstitutional.
Page 150 PREV PAGE TOP OF DOCIV. MISSTATING THE PROBLEM
In the end, therefore, those who are concerned about judges who seem always to be leaning to the left may be better advised to look less to the judicial role in our systemto the practice of judicial reviewand more to the reasoning judges employ in performing their roles and, more importantly, to the sources they employ when doing their reasoning. Bad reasoning is just that and should be called that, not called judicial ''activism.'' But bad law, from which so much bad reasoning proceeds, is another matter. We should hardly be surprised that judges today are thought so often to be engaged in ''judicial activism'' when they are called upon so often to apply law that is inconsistent, incoherent, and fairly invites them to make all manner of value judgments. In such circumstances, they can hardly be seen to be doing anything but legislate.
We come, then, to what in fact is the crux of the matter. Under our system of law, the role of the judge should be much simpler than it has come to be. The problem, however, does not go back just 40 years, as too many conservatives believe. Rather, its institutional roots are in the New Deal. And its ideological roots are in the Progressive Era, when we stopped thinking of government as a ''necessary evil,'' as the Founders had conceived of it, and started thinking of government as an engine of good, an instrument for solving all manner of social and economic problems. Standing in the way of carrying out that agenda, of course, was a constitution that established a government of limited, enumerated powersa constitution that held, more or less, until the New Deal. As we all know, however, when President Roosevelt was unable to get his programs past the Courtthere being no authority for them under the Constitutionhe threatened to pack the Court with six additional members. Not even Congress would go along with that. Nevertheless, the Court got the message; there was the famous switch in time that saved nine; and by 1938 the Court had essentially turned the Constitution on its head, as New Deal architect Rexford Tugwell would later tell us the administration meant for it to do.(see footnote 29)
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In a nutshell, a document of delegated, enumerated, and thus limited powers became in short order a document of effectively unenumerated powers, limited only by rights that would thereafter be interpreted narrowly by conservatives on the Court and episodically by liberals on the Court. Both sides, in short, would come to ignore our roots in limited government, buying instead into the idea of vast majoritarian powerthe only disagreement being over what rights might limit that power and in which circumstances. Indeed, we need look no further than to Judge Borkno liberal heto see the new vision statedand wrongly ascribed to James Madison. The ''Madisonian dilemma'' that constitutional courts face, Bork tells us, is this:
[America's] first principle is self-government, which means that in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities. [It's second principle is] that there are nonetheless some things majorities must not do to minorities, some areas of life in which the individual must be free of majority rule.(see footnote 30)
That gets the Madisonian vision exactly backward, of course. America's first political principle may indeed have been self-government, but its first moral principleand the reason the people instituted government at allwas individual liberty, as the Declaration of Independence makes plain for ''a candid world'' to see.
Indeed, we did not throw off a king only to enable a majority to do what no king would ever dare. Rather, the Founders instituted a plan whereby in ''wide areas'' individuals would be entitled to be free simply because they were born so entitled, while in ''some'' areas majorities would be entitled to rule not because they were inherently so entitled but as a practical compromise.
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That gets the order right: individual liberty first; self-government second, as a means toward securing that libertywith wide berths to state governments, which were later reined in by the Civil War Amendments. That is why the Constitution enumerated the powers of Congress and the executive, to limit them. And that is why the Bill of Rights concludes with the Ninth and Tenth Amendments: to make clear that Americans begin and end with their rights, enumerated and unenumerated alike, while government proceeds only with the power it is given.
The New Deal changed all that, of course, not by amending the Constitution, the proper method, but by radically reinterpreting it: in particular, by reading the General Welfare and Commerce Clauses not as shields against power, as they were meant to be, but as swords of power; then by turning the Bill of Rights into a document of ''fundamental'' and ''nonfundamental'' rights.(see footnote 31) None of that was found plainly in the Constitutionto the contrary, the entire document tends plainly the other way. Rather, it was invented virtually out of whole cloth, by the New Deal Court, to make way for the New Deal's political agenda.
Our modern problem of overweening, inconsistent, incoherent statutory law began, then, not with an activist Courtto the contrarybut with an activist Congress and executive branch, bent on expanding government power. In time, however, the problem was abetted by an activist Courtsuccumbing to pressure from the political branches. But as noted earlier, the Court's ''activism'' was not as we think of it todaya search for rights not apparent in the Constitution. Rather, it was activism in finding rationales for powerwhat conservatives today call deference to the political branches.
Page 153 PREV PAGE TOP OF DOC It needs to be said again, however, that the New Deal Court's activism was not entirely without legal foundation. The sources for the Court's rulings were there, in the Constitution, even if it did take a high degree of creativity, to be charitable, to draw them out, and even if doing so did fly in the face, for the most part, of a century and a half of constitutional jurisprudence that went the other way.
We come, then, to the bottom line in all of this. Law, including constitutional law, is not written in immutable stone. It is to some extent malleable, of necessity, and is given life by those charged with giving it lifethe judiciary. In doing their work, however, judges do not work in a vacuum. They work instead in a larger political climate. If we who shape that climate persist in believing that it is proper for government to be addressing our every problem, no matter how trivial or personal, and persist in believing that our Constitution can legitimately be read to authorize that result, then we should not be surprised that the judiciary is dragged along to play its part in the processtoday, often, to try to undue the mess that legislatures make of the effort.(see footnote 32)
Yes, judges today often thwart the majoritarian willas a vestige, perhaps, of their former principal role. Just as often, however, a judge may see himself as simply a facilitator in the grand enterprise of government. We are coming to the close of what has rightly been called the century of governmentmore accurately, the century of failed government planning. If we are unhappy with the role the judiciary sometimes plays in this setting, it may be that we need to look first to the material we give judges to work withthe reams of statutory material we have enacted over the course of the century.
The Founders had a simpler vision in mind when they set out to craft our legal order. They left most human affairs to private ordering, not to government planning. That gives the judiciaryand Congressrelatively little to do. Is that not what critics of judicial activism want?
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Mr. COBLE. Thank you, Mr. Pilon.
Let me hear from Judge Rader next. I wanted to have this pro, con, pro, con. and, Mr. Pilon, I'm not sure where you come down. I don't say that critically. I think you may be on both sides, as I read you. [Laughter.]
Mr. PILON. That's a fair statement.
Mr. COBLE. Judge Rader.
STATEMENT OF HON. RANDALL R. RADER, CIRCUIT JUDGE, U.S. COURT OF APPEALS FOR THE FEDERAL CIRCUIT, ON BEHALF OF THE FEDERAL JUDGES ASSOCIATION
Judge RADER. Mr. Chairman and members of the subcommittee
Mr. COBLE. Take the microphone, Judge.
Judge RADER. Thank you for inviting the Federal Judges Association to participate in this hearing.
Just over a year ago, the board of directors of the Federal Judges Association adopted the following statement: ''The Federal Judges Association is an independent, voluntary association of Federal judges consisting of most of the Federal trial and appellate judges of the United States. Central to the mission of the Federal Judges Association is, as its charter provides, to preserve and protect the independence of the Federal judiciary from intrusion, intimidation, coercion, or domination from any source.''
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The Framers of our Constitution knew that a judiciary that operates on a day-to-day basis independent of political control or influence was essential to the national well-being. To ensure judicial independence, the Framers provided in article 3 of the Constitution that Federal judges have life tenure. The Framers did not provide for resignation or impeachment of judges based upon their court rulings.
There is an appropriate place for criticism of judicial decision, including criticism by Members of Congress and the President, whose legislative and executive roles and responsibility under the Constitution are fully respected by Federal judges. Within the judicial system such criticism is commonplace; indeed, it is inherent in every appeal. The appellate system accounts for errors, and their correction is an essential component of the process. Judges' rulings are not, and should not ever be, beyond criticism, but appropriate criticism is something quite different than a call for the judge's impeachment or resignation from office because of a decision that a judge has rendered. Accordingly, we endorse the remarks of the Chief Justice of the United States reaffirming ''that an independent judiciary is essential to the proper functioning of the three branches of Government.''
May I add my own brief observations? For 14 years, I served as counsel to the committees and Members of Congress; for 9, I have served as a Federal judge. The Constitution assigns the legislative and judicial branches different responsibilities. Occasionally, the people of our Nation will perceive some tension between these two branches. Actually, this tension is not a problem, but a sign that our constitutional framework is working quite well. After all, the Framers of 1787 deliberately divided the powers of government in order to protect individual liberties. This division of powers necessarily presumes some tension at the margins of legislative and judicial functioning.
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With some trepidation, I would like to pass on some counsel that. I often heard from Chairman Strom Thurmond. I would sit behind him at judicial nomination hearings, and every one that I sat at, he would ask the same question. He would look down and say, ''Can you, young man, be humble?'' To Strom Thurmond all men are young, I suppose, but''Do you understand how important it is''he would say, ''to be humble as a Federal judge?'' Indeed, his implicit counsel seems equally valid for all our branches of government during times of interbranch tension. We need to practice an active humility.
For me, this active humility means the following: Each branch, first, needs to recognize its constitutional limits, and constantly seek to adhere to those legal strictures. Next, each branch needs to realize that it, too, on occasion, has ignored or exceeded constitutional bounds, usually not intentionally, usually for the best of motives, but exceeded those bounds nonetheless. The legislative branch, the executive branch, and, yes, the judicial branch has on occasion exceeded constitutional limits.
For the most part, each branch, perhaps on occasion spurred by the others, has corrected itself. The genius of our constitutional system is that it facilitates self-correction. The legislative branch can and does often change course and correct policies that have not achieved their objectives. Through the appeal process, Federal courts of appeals correct district courts and the Supreme Court ultimately corrects the entire branch. More important, by one count, the Supreme Court has overturned its own decisions 196 times by 1990a clear indication of a body very concerned about humble self-correction, and very concerned about monitoring its own compliance with constitutional limits.
Page 157 PREV PAGE TOP OF DOC In sum, I would recall again Chairman Thurmond's counsel of humility. This counsel I think includes the further counsel of patience. Officers in each branch should avoid using an isolated excess by the other branch as justification for making sweeping institutional changes. Our institutions have worked remarkably well to protect individual rights and liberties for over 200 years, primarily because they have observed the limits of humility and patience.
With those observations, I humbly thank the committee for inviting us to testify.
[The prepared statement of Judge Rader follows:]
PREPARED STATEMENT OF HON. RANDALL R. RADER, CIRCUIT JUDGE, U.S. COURT OF APPEALS FOR THE FEDERAL CIRCUIT, ON BEHALF OF THE FEDERAL JUDGES ASSOCIATION
Mr. Chairman and members of the Subcommittee. Thank you for inviting the Federal Judges Association to participate in this hearing. Just over a year ago on April 30, 1996, the Board of the Federal Judges Association adopted without dissent the following statement of relevance to the questions before the Subcommittee today:
The Federal Judges Association is an independent voluntary association of federal judges consisting of most of the federal trial and appellate judges in the United States. Central to the mission of the Federal Judges Association is, as its charter provides, to ''Preserve and protect the independence of the federal judiciary from intrusion intimidation, coercion or domination from any source.''
Page 158 PREV PAGE TOP OF DOC The Framers of our Constitution knew that a judiciary that operates on a day to day basis independent of political control or influence was essential to the national well-being. To ensure judicial independence, the Framers provided in Article III of the Constitution that federal judges have life tenure. The Framers did not provide for resignation or impeachment of judges based upon their court rulings.
There is an appropriate place for criticism of judicial decisions, including criticism by members of Congress and the President, whose legislative and executive roles and responsibilities under the constitution are fully respected by federal judges. Within the judicial system, such criticism is commonplace. Indeed, it is inherent in every appeal. The appellate system accounts for errors and their correction is an essential component of the process. Judge's rulings are not and should never be beyond criticism But appropriate criticism is something quite different from a call for the judge's impeachment or resignation from office because of a decision a Judge has rendered.
Accordingly we endorse the remarks of the Chief Justice of the United States made on April 9, 1996 at the Washington College of Law of American University reaffirming that an independent judiciary is essential to the proper functioning of the three branches of government under the Constitution.
May I add my own observations. For nearly fourteen years I served as counsel to committees and members of Congress. In that time, I learned much about the complexities and challenges of reflecting the diverse will of ''We the people'' in legislation. For the last nine years I have served as a federal judge. In that time, I again learned much about the complexities and challenges of discerning the meaning of the law in diverse and difficult factual settings.
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The Constitution assigns the legislative and judicial branches different responsibilities. Occasionally the people of our nation will perceive tension between these two branches. Actually this tension is not a problem, but a sign that our constitutional framework is working well. After all, the Framers of 1787 deliberately divided the powers of Government to protect individual liberties. This division of powers necessarily presupposes some tension at the margins of the legislative and judicial functions.
With some trepidation, I would pass on the counsel I used to hear often from Chairman Strom Thurmond. When serving as the Senate Judiciary Committee Chairman, Strom Thurmond would often ask of candidates for a judicial office, ''Can you, young man, be humble? Do you understand how important it is for judges to be humble?'' Indeed his implicit counsel seems equally valid for all our branches of Government. We need to practice an active humility.
For me this active humility means the following: Each branch first needs to recognize its constitutional limits and constantly seek to adhere to those legal strictures. Next, each branch needs to realize that it has, on occasion, ignored or exceeded constitutional limitsusually not intentionally, usually for the best of motivesbut exceeded constitutional limits nonetheless. The legislative branch has ignored or exceeded constitutional limits; the executive branch has ignored or exceeded constitutional limits; and the judicial branch has ignored or exceeded constitutional limits. For the most part, each branch, perhaps on occasion spurred by the other branches, has corrected itself in those rare times of divergence from the aspirations of the Constitution.
I was serving as a counsel in the Senate when the Supreme Court called to our attention that Congress had been ignoring constitutional limits by enacting one-house vetoes of regulations and policies of the executive branch. Chadha v. INS, 462 U.S. 919 (1983). These enacted provisions did not honor the bicameralism and presentment clauses of Article I of the Constitution. A few years later, I was called to a meeting in the office of the majority leader of the Senate where I was asked to give counsel to Senators Gramm, Rudman, Hollings, Hatch, Dole, and others about the constitutionality of the pending Gramm-Rudman-Hollings Deficit Control Act. I had some misgivings, but ultimately counseled that permitting the Comptroller to trigger budget cuts would not be an inappropriate delegation of legislative authority. I had failed to realize that Congress had placed execution of the laws in an officer only it could remove thus intruding upon the executive function. Bowhser v. Synar, 478 U.S. 714(1986).
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The Judiciary too has ignored or exceeded constitutional limits. The most chilling reminders of judicial excess are Dred Scott v. Sanford, 60 U.S. 393 (1856) and Plessy v. Ferguson. 163 U.S. 537 (1896).
The genius of the constitutional system, however, is that it facilitates self-correction. The legislative branch can and does often change course and correct policies that have not achieved their objectives. Through the appeal process, federal courts of appeal often correct federal district courts and the Supreme Court corrects the entire branch. More important, by one count the Supreme Court had overturned its own decisions 196 times by 1990a clear indication of a body very concerned about humble self-correction and monitoring its own compliance with constitutional limits. Killian, J., ed., The Constitution of the United States' Analysis and Interpretation (Congressional Research Service) 1990.
In sum, I would recall again Chairman Thurmond's counsel of humility. This counsel, I think, includes the further counsel of patiencepatience in allowing the self-correcting mechanisms in each branch to operate. Officers in each branch should avoid using an isolated excess by the another branch as justification for making sweeping institutional changes. Our institutions have worked remarkably well to protect individual rights and liberties for over two hundred years, primarily because they have practiced Thurmond-like humility and patience. With those observations, I humbly thank you for again permitting the Federal Judges Association to appear today. Thank you.
Mr. COBLE. Thank you, Judge. Good to have you with us.
We will conclude with our friend from Texas, Professor Graglia.
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STATEMENT OF LINO A. GRAGLIA, A. DALTON CROSS PROFESSOR OF LAW, UNIVERSITY OF TEXAS SCHOOL OF LAW
Mr. GRAGLIA. Thank you, Mr. Chairman and members of the subcommittee. I am, indeed, grateful for the opportunity to be able to speak here.
Congressman Conyers pointed out that the function of the hearings today was much broader than yesterday, going beyond the issue of impeachment, and my remarks will indeed be much broaderin fact, going to the very center of the question of judicial power, which I think is the most serious question the country faces.
The most serious defect in the American system of government at present is the policymaking role assumed by the Supreme Court. It's nice to know that the courts of appeals correct the lower courts and the Supreme Court corrects the courts of appeals, but, unfortunately, no one corrects the Supreme Court, which is infallible, as Justice Jackson said, ''only because it's final.'' The Supreme Court has become the most important institution of American Government in terms of domestic social policy, a truly scandalous and outrageous situation in our form of government.
Over the last 40 years, almost every fundamental issue of social policyabortion, capital punishment, criminal procedure, prayer in the schools, government aid to religious schools, public displays of religious symbols, pornography, libel, vagrancy control, discrimination on the basis of sex, alienage and illegitimacy, busing for school racial balance, and so onevery basic issue of social policy has been decided not by elected legislators, State or Federal, but for the Nation as a whole by a majority vote of the nine lawyers making up the Supreme Court. And on almost every issue the Court has worked a social revolution by, for example, removing prayers from the schools and prohibiting most restrictions on pornography.
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Policymaking by the Supreme Court violates the basic constitutional principle of separation of powers in that it is a usurpation of legislative power by the judiciary. It violates the principle of representative self-government in that it is rule by unelected judges holding office for life, and it violates the principle of federalism in that it centralizes policymaking in the National Government. It is, in short, a complete perversion of the constitutional system that made this country the freest and most prosperous on earth.
The basis of our peculiar system of government by the judiciary that we have now somehow achieved or arrived at is the power of judicial review, not explicitly provided for in the Constitution, the power of judges to refuse to enforce, and therefore to invalidate the acts of other institutions and officials of government, as prohibited by the Constitution. It is not the Constitution or even the judicial review as such, however, that has made judges our basic policymakers. It is judicial activism, by which I mean very specifically the invalidation of policy choices as unconstitutional that are not in fact clearly prohibited by the Constitution. And if a prohibition is not clear, the opinion of elected representatives should prevail over the opinion of judges, of course, in a system in which representative self-government is the norm.
The most important thing to understand about constitutional law is that it has almost nothing to do with the Constitution. Although the Court claims to interpret and enforce the Constitution, no question of constitutional interpretation in any meaningful sense was in fact involved in any of the Court's controversial rulings of unconstitutionality in recent decades. Indeed, the vast bulk of rulings on unconstitutionality purport to be based on a single constitutional provision, the amendment, and ultimately on four words: ''due process, equal protection.''
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The Justices do not decide difficult issues of social policyI'm sure you all realize with a moment's thoughton a vast array of subjects by studying those four words, and nothing else is being interpreted, even purportedly; this is all that's involved in virtually every case.
The second and final thing to understand about constitutional law, in addition to the irrelevance of the Constitution to the ''constitutional'' decisions of the last four decades, is that it has almost uniformly served to enact a left liberal agenda, invalidatingnot that it would have been any better to have enacted a right agenda, but this in fact is what it has doneinvalidating policy choices favored by a majority of the American people, almost always only an order to substitute policy choices further to the left; those favored, for example, by the American Civil Liberties Union. It is not a coincidence that the Court disallows prayer in the schools, which is the ACLU position; restricts capital punishment, which is the ACLU position; removes restrictions on pornography, which is the ACLU position, and so on down the line. It's not a coincidence; it's virtually uniform. In effect, the Court functions as the mirror and mouths piece of liberal academia.
We have, in effect, instituted a regime of government by intellectuals, perhaps the most dangerous form of government. Today's academic intellectuals, often products of the 1960's, are typically in an adversary relationship with ordinary citizens. As George Orwell pointed out, ''There are some ideas so preposterous only the highly educated can believe them.'' American intellectuals are no exception, overwhelmingly favoring a doctrinaire egalitarianism and individualism that is not, unfortunately, consistent with the maintenance of a viable society.
Page 164 PREV PAGE TOP OF DOC Finally, our four-decade experiment with government by judges in accordance with the policy preferences of academic liberals, the essence of our system now, has not proved to be an improvement on government by all of the people. Its effect has been to tear the Nation apart. There is no more urgent task, therefore, than finding a means of bringing government by judges to an end and returning to the system of government created by the Constitution.
[The prepared statement of Mr. Graglia follows:]
PREPARED STATEMENT OF LINO A. GRAGLIA, A. DALTON CROSS PROFESSOR OF LAW, UNIVERSITY OF TEXAS SCHOOL OF LAW
The most serious defect in the American system of government as it currently operates is the policymaking role assigned to itself by the Supreme Court. The Court has in recent decades evolved into the most important institution of American government in terms of domestic social policy. It has made itself the final arbiter on issues literally of life and death, as in its abortion and capital punishment decisions, issues of sexual morality, as in its decisions on contraception, homosexuality, and the regulation of pornography, and issues of social order, as in its decisions on criminal procedure, street demonstrations, and vagrancy. It is the Court that now decides such additional fundamental policy issues as the place of religion in public life, prayer in the schools, government aid to religious schools, and the permissibility of distinctions on the basis of race, sex, alienage, and illegitimacy. In sum, the issues that determine the nature of a civilization or culture and the quality of life in a society are no longer determined on a local basis by elected representatives, but for the nation as a whole by majority vote of a committee of nine lawyers unelected to office, unremovable by elections, and holding office essentially for life.
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Policymaking by the Court is obviously inconsistent with the basic constitutional principles of separation of powers, representative self-government and federalism that are the only real protection against governmental tyranny. Judicial policymaking usurps the legislative power that the Constitution assigns exclusively to Congress in part and otherwise reserves to the states; it replaces representative self-government with government by electorally unaccountable officials; and it decides for the nation as a whole policy issues that the Constitution leaves for the most part for decision on the state or local level, by officials closest and most responsive to the people the policies affect. It amounts, in short, to a near-total subversion of the system of government created by the Constitution. How has this come to be, and why is it permitted to continue?
American constitutional law is for most practical purposes the product of ''judicial review.'' Judicial review is the power of American courts to refuse to enforce, and therefore effectively to invalidate, the acts of other institutions and officials of government on the ground that they are prohibited by the Constitution. Surely the most remarkable feature of the power, initially, is that it is not explicitly provided for in the Constitution. No such power existed under British law, the source of most American legal practices and institutions. It was Parliament, of course, not a court, that was said to be supreme.
It is not judicial review itself, however, but only its abuse that presents the problem of uncontrolled judicial poweralthough given the power, its abuse by lawyer-judges is almost surely inevitable. All constitutionalism may be criticized as essentially antidemocratic, as an attempt to limit the policy choices of today's majority by policy choices made by others in the past. The American Constitution, however, wisely places very few and largely uncontroversial restrictions on popular government. The enactment of a clearly unconstitutional lawa law passed in ignorance or defiance of a constitutional prohibitionis, therefore, a very rare occurrence. The result is that if judicial review were what it purports to be, occasions for its exercise would be so infrequent as to make it a matter largely of academic interest.
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The problem of judicial review as actually practiced is not the problem of constitutionalism, rule of the living by the dead, but the problem of judicial activism, rule by judges who are very much alive. Judicial activism can be most usefully defined as the judicial invalidation of laws that are not clearly prohibited by the Constitution. Only laws clearly prohibited by the Constitution should be invalidated, of course, because if representative self-government is the norm, the judgment of elected representatives should prevail in cases of doubt.
The first and most important thing to know about constitutional law is that it has virtually nothing to do with the Constitution. Discussions of constitutional law and the role of the Supreme Court in the American system of government are almost exclusively in terms of how the Court should interpret the Constitution in deciding so-called constitutional cases. This, however, is a mere legal fiction, a verbal convention used, like other legal fictions, to conceal what is actually going on. In almost no controversial Supreme Court decision of recent decades was any question of interpretation in fact involved. The real question presented by the Court's controversial rulings of unconstitutionality, is not how the Court should interpret the Constitution, but whether it should confine itself to that limited task in making its ''constitutional'' decisions.
Sufficient evidence that constitutional interpretation plays little role in constitutional decision making is the fact that so little is supposedly being interpreted. The Constitution is a very short and apparently straightforward document, easily printed with all amendments, repealers and extensive obsolete matter on a dozen or so ordinary book pages. It is not at all like the Bible or Talmud or even the tax code, massive tomes in which many things can be found with sufficient search. The vast bulk of rulings of unconstitutionality involve state, not federal, law, and nearly all of them purport to be based on a single constitutional provision, the Fourteenth Amendment, and indeed, on a single sentence of that amendment and ultimately on one or both of two pair of words, ''due process'' and ''equal protection.''
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It does not require a high degree of jurisprudential sophistication to recognize that Supreme Court justices do not make their decisions on a vast array of difficult and complex issues of social policy by studying the words ''due process'' and ''equal protection.'' The Fourteenth Amendment was 105 years old when, for example, the Court decided Roe v. Wade in 1973. All or nearly all states had laws restricting the practice of abortion. Isn't it odd that no one noticed that these laws were prohibited by the due process clause of the Fourteenth Amendment until Harry Blackmun came along to point it out?
As another example, there was a time when the Constitution permitted the assignment of children to schools on the basis of race, as the Court told us in Plessy v. Furgeson in 1896 and later cases. There then came a time when the Constitution prohibited the assignment of children to public schools on the basis of race, as the Court told us in Brown v. Board of Education in 1954. Finally, there came a time, the present, when the Constitution often requires the assignment of children to public schools on the basis of race, as the Court held in Swann v. Charlotte-Mecklenberg in 1971. In all that time, however, the Constitution was not changed in any relevant respect. A scientific observer would have no difficulty concluding that the Constitution was not the relevant variable.
Indeed, the Court has even made it possible to prove scientifically that the Constitution has nothing to do with constitutional law. The defining characteristic of science is that it makes predictions based on hypotheses testable by controlled experiments. For example, if the hypothesis is that it was the addition of chemical X to a certain solution that caused it to turn blue, the hypothesis can be tested by compounding the solution without the addition of chemical X. If it nonetheless turns blue, the hypothesis must be considered refuted. Controlled experiments are rarely possible in the so-called social sciences and law, but the Court has in effect provided us with one on the issue of school racial segregation.
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The Brown decision, of course, held legally required school racial segregation unconstitutional. It was based, the Court told us and virtually everyone believes, on the equal protection clause of the Fourteenth Amendment. What if the Brown decision could in effect be run again, as in a controlled experiment, this time without the equal protection clause, to see what difference, if any, its absence would make? As if to serve the case of legal science, this is essentially what occurred.
On the day the Court decided Brown, it also decided a much less famous case, Bolling v. Sharpe, involving the constitutionality of school racial segregation laws, enacted by Congress, in the District of Columbia. As it happens, the equal protection clause does not apply to Congress and the District of Columbia. What difference did that make in the result reached? Why, none at all: school segregation laws were found equally unconstitutional in the District of Columbia. The liquid still turned blue!
School segregation was unconstitutional in the District of Columbia, Chief Justice Earl Warren explained for a unanimous court, because it was ''unthinkable that the same Constitution would impose a lesser duty on the Federal Government'' than on the states. This may be taken as a typical example of Supreme Court reasoning, reasoning that would not be acceptable in any intellectually respectable discipline. The Constitution has many provisions imposing different duties on the federal government and the states. The contracts clause, for example, restricts only the states, while the first eight amendments restrict only the federal government. Since segregation in the District of Columbia had to violate something in the Constitution, however, according to the Court, the only problem was to decide which constitutional provision it would be.
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Having very few good options, the Court settled on the always handy due process clause of the Fifth Amendment, which happily, does apply to the federal government. The only difficulty is that this requires one to believe that a constitutional provision added in 1791 to a Constitution that explicitly recognized and protected slavery was meant to prohibit sending blacks and whites to separate schools. If the due process clause of the Fifth Amendment was not available for some reason, the Court undoubtedly would have turned, with equal validity and no greater embarrassment, to some other constitutional provision, perhaps the clause prohibiting the federal government from discriminating among seaports.
The Court's abortion decisions are rightly castigated as based on nothing in the Constitution, on prohibitions created by the Court out of whole cloth. The Court's decisions on religion, however, illustrate the irrelevance of the Constitution to constitutional law in possibly even more dramatic form. The purpose of the religion clauses of the First Amendment''Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...''was to safeguard the freedom of the states from federal interference in matters of religion. The Court's decisions on state provisions for prayer and Bible reading in public schools, state aid to religious schools, and state permission for religious symbols in public places, stand these constitutional guarantees on their head.
Purporting to ''incorporate'' the religion clauses into the due process clause of the Fourteenth Amendment, the Court, an arm of the federal government, has made of them all the authority it needs for precisely the type of interference with state policymaking on matters of religion that they were meant to preclude. This is not merely the making of constitutional law without constitutional warrant, as in Roe v. Wade, but the making of constitutional law in defiance of the Constitution. Similarly, the fact that the Constitution expressly recognizes capital punishment in several places did not prevent Justices Brennan, Marshall and Blackmun from insisting that capital punishment is constitutionally prohibited.
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The second and final thing necessary to understand American constitutional law, in addition to the essential irrelevance of the Constitution, is that the Court's constitutional decisions of the last four decades have not been random in their ideological thrust and political impact. On the contrary, they have almost uniformly served to enact the left-liberal position on the policy issue involved, whether it is abortion, prayer in the schools, aid to religious schools, public display of religious symbols, capital punishment, criminal procedure, discrimination on the basis of sex, illegitimacy or alienage, pornography, libel, busing for school ''racial balance,'' and so on almost without end.
The only thing these decisions on a vast array of subjects have in common is that each invalidates a policy choice made in the ordinary political process in order to substitute a choice further to the left on the American political spectrum, the choice favored by the American Civil Liberties Union. Indeed, it is only a small exaggeration to say that the ACLU never loses in the Supreme Court, even though it does not always win. It either obtains from the Court a policy choice it could not obtain through the ordinary political process because opposed by a majority of the American people or it is left where it was to try again on another day.
The position of defenders of conservative or traditional values in the Supreme Court is precisely the reverse of that of the ACLU. They rarely winthat is, obtain a policy choice they could not obtain in the ordinary political processeven though they do not always lose. The crucial distinction between failing to win, the worst that can usually happen to liberals, and failing to lose, the best that can usually happen to conservatives, is rarely noted. A reversal of Roe v. Wade, for example, would not be a positive victory for opponents of abortion; it would merely leave them free again to fight for their position in the ordinary political process. A victory for opponents of abortion equivalent to the victory gained by proponents in Roe v. Wade would require, of course, not merely the reversal of Roe, but a decision prohibiting abortionby holding, for example, that the fetus has a constitutionally protected right to life.
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Such victories by conservatives in the Supreme Court are, however, simply unthinkable in the American context. We hear much these days about an alleged ''conservative'' Supreme Court, even though the Court continues to deliver such major liberal victories as its recent decisions invalidating term limits, disallowing the operation of all-male military schools, and invalidating a state constitutional provision that disallowed special rights for homosexuals. For a liberal, a conservative Court is simply one in which liberal victories come less frequently or quickly. A Court that reversed a prior liberal victory, returning the issue to the political process, would be denounced as not merely conservative but reactionary. A Court that regularly gave conservatives positive victories equivalent to those it has given liberals for over four decades would be castigated for usurpation of legislative powers, and demands to end judicial tyranny would soon follow.
How did it happen that the Supreme Court, wielding the power of judicial review, should become in effect the enacting arm of the ACLU? Judicial review was defended by Alexander Hamilton and established by Chief Justice John Marshall, ardent defenders of property rights and economic liberty, on the assumption that it would serve, in the hands of conservative lawyers like themselves, as an obstacle to sudden or radical social change. This is the function it in fact performed during the first century and half of the nation's history. The 1954 Brown decision, however, worked a radical change. Brown's real significance lay less in what it held, as important as that was, than in the change it brought about in popular perception as to the proper role of judges in the American system of government.
The Brown decision became effective and enforceable only with the enactment of the Civil Rights Act of 1964, but the glory of starting the civil rights revolution was nonetheless seen as belonging to the Court. Policymaking by the Court supposedly on the basis of principle came to be seen, at least by liberals eager for further ''basic social change,'' as an improvement over policymaking by mere politicians subject to electoral constraints.
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If the Court could bring about the end of segregation in the South, altering the basic social arrangement of one-third of the nation, what was it that the Court could not do? And if it could do other great things, why shouldn't it? It was inevitable, therefore, that the Court would move on to other achievements. Many of these, such as the creation of a right to abortion on demand, may be less justifiable than Brown, but Brown nonetheless served to immunize the Court from criticism. To argue after Brown that the Court was not authorized or qualified to make society's most basic social policy decisions was only to invite the response, ''So, you disagree with Brown?'' As it was not permissible to disagree with Browndisagreement meant political oblivion and, at least in academia, social ostracismthere could be no response but silence. The result of ''playing the Brown card'' was to make the Court the unchallengeable final arbiter of domestic social policy and to convert judicial review from its intended role as a brake on social change, to a new role as the accelerator and initiator of change.
But why has Congress permitted the Court to become the nation's ultimate policy maker on basic issues of social policy? Why has it never in the past four decades taken effective action to reassert legislative supremacy? One reason is simply that judicial activism, by definition, makes the Court the leading actor; the Court's policies automatically gain the advantages of becoming the status quo and of the force of inertia. Opponents of the Court's policies must undertake the burden of trying to change them. For several reasons, including the Senate filibuster, it is much easier to defeat a proposed change than it is to bring it about.
Further, during the relevant decades and until 1994, at least one and usually both houses of Congress were in the control of the Democratic Party. The left-wing of that party shared the Court's policy preferences and knew that the Court was the only means by which they could be enacted into law. Liberal congressmen were prepared, therefore, to defend the Court against any challenge to its power, regardless of agreement or disagreement with the Court on the particular issue involved. It is doubtful, for example, that many congressmen agreed with the Court's racial busing decisions. A measure proposed by President Nixon to restrict the Court's power to order busing was nonetheless defeated in the Senate by means of a filibuster led by Senator Edward Kennedy. Busing is a disastrous social policy, but it is more important to the long range interest of liberalism that no liberal Supreme Court decision ever be overturned. That would only encourage conservatives to believe that more such victories are possible.
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The apparent invulnerability of the Court's power derives primarily, however, from the fact that the Court now functions essentially as the mirror and mouthpiece of liberal academia and others of America's intellectual, or at least articulate, class, the class of people whose only tools and products are words. The occupational hazard of people who live primarily in a world of words is a tendency to confuse control of words with control of reality, which in turn permits seeing hope in utopian schemes that to persons more regularly in contact with reality seem absurd. This is the basis of George Orwell's observation that there are some ideas so preposterous that only the highly educated can believe them.
The economist Joseph Schumpeter noted as an inherent contradiction of capitalism that it will serve to produce a prosperity that will cause intellectuals to become alienated and disaffected. Capitalism does not always reward intellectuals in proportion to their natural superiority, whereas socialism involves planning that more closely requires their talents. Whatever the reason, Liberal academics tend to adopt a strongly adversarial attitude toward the values and beliefs of the more conservative and traditionalist average citizen, and liberals tend to be influential disproportionately to their numbers. It is liberals who by definition want to change things, and liberals, therefore, who are most willing to make the effort to assume leadership positions. It is surely this that explains the unfortunate but near-universal phenomenon that the leaders of almost any grouppolitical, religious, academicare more liberal than most members of the group.
The nightmare of the American intellectual is that the control of public policy should fall into the hands of the American people. In the American context, policymaking by the justices of the Supreme Court in the name of the Constitution, is the only way in which this can be prevented. The American people actually favor such unenlightened policies as capital punishment, restriction of abortion and pornography, prayer in the schools, effective enforcement of the criminal law, neighborhood schools, and so on. The citizens of Colorado recently went so far in a popular referendum, indeed, as to disallow laws granting special legal protections to homosexuals. It was only the Constitution, as interpreted by the Supreme Court, that prevented the people of Colorado from making this policy decision.
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As the function of judicial review since Brown has been to substitute the policy views of liberal academics for the views of a majority of the American people, the basic function of constitutional law professors has been, in turn, to defend and justify judicial review to the American people. The task is a difficult one. Although government by Supreme Court justices is obviously inconsistent with the fundamental principles of government established by the Constitution, it must somehow be defended as a product of the Constitution. It is not politically possible for defenders of judicial activism to come clean and openly argue, with Plato, that government by philosopher kings is an improvement on representative self-government. Democracy is the norm in American political life, and must be paid lip service even by intellectuals who hold it most in disdain. Further, even if it were possible to defend government by philosopher kings, how is it possible to defend government by lawyer kings?
Judges do not cease being lawyers, professionally trained advocates for any assigned or adopted cause, upon being elevated to the bench and clothed in black robes. They retain the skills and ethical standards of advocacy, which permit the less than total attachment to factual accuracy and logic that is characteristic of their profession. As a result, Supreme Court opinions are often characterized by misstatements of fact and defiance of logic that would not be considered permissible in statements by other public officials.
Policymaking by judges is not favored by liberal constitutional theorists, however, because they consider our lawyer-judges exceptionally knowledgeable or otherwise qualified in making policy decisions. It is favored only because it has since Brown reliably pushed social policy choices to the left and can be expected to continue to do so regardless of who makes the judicial appointments. One reason for this is that the judicial landscapein particular, the view of judges as to their proper rolehas so changed as a result of decades of hyper-activism since Brown that there seems to be no going back. The center has moved so far to the left that a so-called conservative judge today can be to the left of where a liberal judge was forty years ago.
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What then can be done to reduce the role the Court has assumed in the past four decades as, in effect, the enacting arm of the ACLU? Means of asserting legislative supremacy over the Court are available in theory, but experience has shown, not in practice. The only real hope conservatives have had to change the direction of the Court over the past forty years was to put conservative presidents in charge of the appointing process. This, too, however, has proven a futile hope. President Franklin Roosevelt needed only one or two appointments to turn the Court completely around and guarantee that the Constitution would never again give the New Deal the least bit of trouble. President Nixon, however, blessed with the extraordinary good fortune of having four appointments, including a replacement for Chief Justice Warren, at the beginning of his term of office, was not able to bring about the overturning of a single one of the Warren Court's major innovations. On the contrary, he produced a Court that went on to new heights of hyper-activism, as in its abortion and racial busing decisions.
Republican presidents supposedly committed to limiting judicial activism made six more consecutive appointments after the Nixon four. Even ten consecutive appointments were not enough, however, to change the direction of the Court. Perhaps Republican presidents have all just been especially inept at making appointments, as in Nixon's appointments of Chief Justice Burger and Justices Blackmun and Powell, Reagan's appointments of Justices O'Connor and Kennedy, President Ford's appointment of Justice Stevens and President Bush's incredible blunder in appointing Justice Souter. Change any one of these appointments for the better and the United States would be a different country. It does not seem likely, therefore, that new appointments will suffice to change the policymaking role the Court has assumed. It is necessary that the role itself somehow be redefined.
Page 176 PREV PAGE TOP OF DOC The surest remedy for the degeneration of the American system of government into a system of rule by judges is, of course, simply to abolish judicial review. This, however, is unthinkable, even by conservatives who have seen their country stolen from them by judicial review for more than forty years. Even conservatives apparently cannot imagine the country managing somehow to get by without the supervision and ultimate control of Supreme Court Justices. Liberals at least know where their interest lies; conservatives are merely confused.
A much less drastic remedy would be sufficient, however, to bring government by judges virtually to an end. As already noted, the problem is not judicial review as such, but judicial activism which is based almost entirely on the due process and equal protection clauses of the Fourteenth Amendment. The Court has acquired and exercises supreme policymaking power by simply divorcing these two clauses from their historic meaning and treating them as a blanket grant of authority to make itself the final arbiter on any policy issue. An effective and appropriate remedy for the situation, therefore, would be a constitutional amendment restoring the Fourteenth Amendment to what it was intended to be: a federal guarantee of basic civil rights to blacks. Even better would be to extend it to a simple prohibition of all official racial discrimination.
A proposal that constitutional provisions enforceable by judges to preclude popular policy choices should have a definite meaning would not seem to be a controversial one. Realistically, however, the notion that the Fourteenth Amendment will be amended to give it a more definite meaning is little less fanciful than the hope of amending the Constitution to abolish judicial review. It may be useful, however, to point out that there is a remedy for a disease and what it is, even if the patient cannot yet be induced to take it. There should be no doubt, in any event, that our four decade experiment with policymaking by judges has not proven to be an improvement on representative self-government. On the contrary, it has clearly caused the nation great harm. The egalitarian and libertarian policy preferences of the ACLU, so appealing to intellectuals, are inconsistent, unfortunately, with the maintenance of a viable society. No issue facing Americans is more urgent, therefore, than finding an effective means of limiting judicial power.
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Mr. COBLE. Thank you, gentlemen, for your testimony and for your presence here.
Professor, I read you as a strict constructionist who opposes activism. Let me put a two-part question to you. On the one hand, should the Congress consider a more active role in impeaching activist judges, or if that is too extreme, should we consider alternative tools such as term limits or periodic reconfirmation to discourage activism?
Mr. GRAGLIA. I think that impeachment is extraordinarily blunt instrument that really can't be made to work in most cases. I agree that if a judge likeI've heard two instances here of Judge Sprizzo who announced that he is simply above the law; his conscience goes first. And I believe that some form of censure should be available for that. However, that's not surprising; that's what constitutional law is today; it is simply Justice Brennan's conscience comes first or Justice Blackmun's. It's one thing to have a system of constitutional law where judges in fact interpret and apply a meaningful Constitution, but what these judges have done is said that ''due process'' protection and ''equal'' mean that they are simply authorized to do the ''right thing,'' to follow their conscience in every case, and that a lower Federal district court judge should then feel authorized to follow his conscience is not very surprising since that's obviously what the Supreme Court does.
So, we can't have had a long tradition of permitting this and then severely slapping judges down with impeachment. What we needthe only real correction, in my view, is we must make clear that it's one thing to enforce a Constitution with meaningful provisions; it's another thing to give judges the power to enforce a totally empty Constitution, a Constitution to which they can pour any meaning. Since this is all done under the due process clause and the equal protection clause of the 14th amendment, virtually all of it, the remedy is to simply return the 14th amendment to its intended meaning; namely, protection of civil rights for blacks or, even more broadly, simply have it mean it prohibits all racial discrimination by government.
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That would effectively and the power of judges to make all our basic social policy decisions. Should we have prayer in the schools? A difficult question, but why should we have a committee of nine lawyers decide that for the Nation, which is where we are now? So impeachment is a very crude tool, I agree. It hardly seems workable. As to term limits judges may work all the faster to do as much damage as they can in the short years they have. I'm not sure that's the answer.
We had Justice Brennan for 36 years. Judges do die, but the robe seems to bestow some element of immortalitya third of a century for Douglas, for Black, for Brennan. That's a long time to have them as our primary policymakers.
Mr. COBLE. Professor, thank you, My time is running.
So speaking of robes, let me shift to Judge Rader. Judge, do you believe that there is no authority which suggests that judges may be impeached for the equivalent of exceeding constitutional authority?
Judge RADER. The constitutional standard is that a judge is subject to impeachment for high crimes or misdemeanors. Another clause in the Constitution, as you've referred to, is that a judge serves for life as long as he continues to abide by his oath, which is good behavior. I believe that there's been no instance in this country where we have departed from that standard and subjected the judicial decisionmaking process to the sanction of impeachment. Indeed, the independence of the judiciary requires something very different. I don't think we wish to have our judges making decisions based on what they perceive the political pressure to be. Rather, we would wish to have them making the decision that they perceive the Constitution and laws to require.
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Mr. COBLE. Mr. Pilon, let me put a general question to you. What, in your opinion, constitutes judicial misconduct and how egregious must that conduct be to warrant impeachment?
Mr. PILON. A good example of judicial misconduct is taking place right now in the State of Alabama where the judge, whose name escapes me at the moment
Mr. FRANK. Moore.
Mr. PILON [continuing]. Moorehas posted the Ten Commandments in his courtroom and is urging clergy to lead the jury in prayer, if I'm not mistaken, Christian prayer.
Mr. COBLE. In his courtroom or in his office?
Mr. PILON. Well, I don't know if it would make a difference strictly speaking.
Mr. COBLE. Well, OK. Right.
Mr. PILON. And has been ordered not to do so by a higher appellate State court and is still threatening to do so. That strikes me as getting very close to an impeachable offense because it goes to some very fundamental principles on which this Nation rests, and it defies a whole long line of Supreme Court opinions.
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But I would just correct one thing, Mr. Chairman. You suggested that Lino Graglia is a strict constructionist. Lino Graglia is a national treasure. Let's be clear about that. If he didn't exist, as I've often told him, we'd have to invent him.
But he's not a strict constructionist. Indeed, his view, as stated in his prepared testimony, is that judicial activism is the invalidation of ''policy choices that are not clearly prohibited by the Constitution.'' That has the Constitution exactly backwards. That jettisons the doctrine of enumerated powers from the Constitution. That, indeed, is not the Constitution. So you see, this debate about us is a debate between what the meaning of the Constitution is. If we can't, people who are thought normally to be on the right, decide this issue, then I don't know how the 435 of you are going to do it when you get some judge before you on impeachment hearings. I mean, you will really see
Mr. COBLE. And a healthy debate it is thus far.
Mr. PILON. A healthy debate, yes.
Mr. COBLE. Folks, the bell has been sounded. Why don't we let Mr. Frank use his 5 minutes for questioning and then we'll talk about where we'll go from there.
Mr. FRANK. Let me begin, Mr. Pilon, by saying that if you were to invent Professor Graglia, I think you would have to publish him 18 months after you filed your application, as a result of this committee. We wouldn't want anyone submarining Mr. Graglia on us. [Laughter.]
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Let me ask, Professor Graglia, you said it's not a coincidence that the positions of the American Civil Liberties Union have been those of the Supreme Court. Now as you noted in the May-June policy review, there was a period when Republican Presidents, beginning with Richard Nixon, made 10 consecutive Supreme Court appointments. Would you explain exactly how it happened noncoincidentally that 10 Republican Supreme Court appointments in a row came out with the ACLU? Were Nixon, Ford, Bush, and Reagan consciously conspiring with the ACLU, or how did this lack of coincidental convergence come about between those four Republicans and the ACLU positions?
Mr. GRAGLIA. Congressman Frank, as you intended, that's an extremely embarrassing question. [Laughter.]
Mr. FRANK. Thank you. [Laughter.]
Mr. Graglia, that's probably the nicest thing either one of us will ever say to the other. [Laughter.]
Mr. GRAGLIA. No, I'm prepared to say nicer things to you, at least. There may not be reciprocation.
No, it's an extraordinary thing. As Bruce Fein said, one or two appointments by FDR completely turned the Court around. Indeed, Owen Roberts had switched, and it turned around even before the first appointments. And after Black and Douglas were appointed, the Constitution never gave the New Deal the least bit of trouble again, proving it wasn't the Constitution; it was these people.
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And one expected that when Nixon, by great good fortune, got four appointments right at the beginning of his term that it would turn the Warren Court around, but it didn't. What the Brown decision has done is that it has created an entirely different perception among the country, and certainly among judges, as to their appropriate role. They did this wonderful, great thing. They decided Brown. And if they could do that wonderful thing, and 10 years later it became effective and stuck, when Congress acted with the 1964 Civil Rights Act. But the idea was, if they could do a wonderful, moral thing, why don't they do all wonderful, moral things? They became so
Mr. FRANK. And Reagan and Bush couldn't treat that
Mr. GRAGLIA. Excuse me?
Mr. FRANK. And Reagan and Bush couldn't find people who could break the
Mr. GRAGLIA. No, unfortunately, they did not. In Rehnquist, they found an effective man of strength with the view that it really was not his function to make social policy. But the pressures on the judges are all the other way. The only way I can explain this in terms of most of the judges, the Kennedys, perhaps the Stevens, the BlackmunBlackmun, who turned very muchis that all the pressures on them, the kudos from the law school, the approval from the academy, are a push to the left.
Mr. FRANK. Let me break through it, because you mention Justice Rehnquist, but I'm up to about seven laws that he's voted to invalidate, including, for instancebecause you've said that the judges, you think the Supreme Court Justices are unconstrained by the Constitution; they're just doing what they really want. They're giving vent to their preferences.
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I have to ask you, when Justice Scalia it was constitutional to burn the flag, that you could not stop someone from burning the flag, do you think he's really in favor of burning the flag and that's why he said it? And let me throw in one other one.
Mr. GRAGLIA. Unconstitutionalhe said
Mr. FRANK. Yes. Are you sayingright. Do you think that that was his preference when he said that it was unconstitutional to ban flag-burning? And let me throw in, so you can answer them all at once, when all the Justices, including Rehnquist and Scalia said that you could not ban indecent messages, another ACLU convergence, do you think Scalia and Kennedy are in favor of indecent messages, and it was their personal preference; they were just pretending to be constrained by the Constitution? So on the flag-burning and on indecent messages, do you maintain that Scalia and Kennedy and Rehnquist were doing what they really wanted to do rather than what they interpreted the Constitution as requiring?
Mr. GRAGLIA. Yes, in no realistic sense are they interpreting the Constitution. First of all, as was pointed out today, what in the Constitution are you referring to? Oh, the first amendment.
Mr. FRANK. No, excuse me. Specifically, are you telling me that you believe that Scalia, Kennedy, and Rehnquist are in favor of flag-burning and in favor of indecent messages, and that's why they decided that way?
Mr. GRAGLIA. No, but they are in favor of retaining the judicial power to pass on laws like
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Mr. FRANK. But, Professor, Graglia, excuse me, because I want to focus on this. You said, howeverI understand that, but you could be in favor of maintaining the power and still not find it operative on a particular case. Your clear statement was that when they made these decisions, they were not even trying to interpret the Constitution; they were simply giving vent to their own consciences.
Mr. GRAGLIA. Yes, there is nothing there
Mr. FRANK. And do you believe that that describes those Justices in these cases?
Mr. GRAGLIA. Congressman Frank, what do you think they were interpreting in the flag-burning cases? They were interpreting the due process clause of the 14th amendment. There's nothing else. No, wait a minute; they're interpreting the first amendment, right?
Mr. FRANK. Yes.
Mr. GRAGLIA. No, the first amendment says ''Congress shall make no law''; it doesn't say Texas shall make no law.
Mr. FRANK. I understand, though, Professor Graglia, you're missing my point.
Page 185 PREV PAGE TOP OF DOC Mr. GRAGLIA. I'm sorry.
Mr. FRANK. I disagree with you on the substance, but you may think they were wrong, but you made a statement that you didn't even think they were trying to be right, that they were simply giving vent to their own personal preferences.
Mr. GRAGLIA. They
Mr. FRANK. I think that's an inaccurate description of what Kennedy, Rehnquist, and Scalia were doing in those cases.
Mr. GRAGLIA. It is an accurate description, but we have to state their preference a little more broadly than you did, I'm afraid.
Mr. COBLE. Professor, let me get my oars in the water. You guys continue this. We have a vote on, and there will be two votes, I'm told. Why don't those of us who want to vote go to the floor to vote. You all stand easy here. Barney, you and the professor may continue this. [Laughter.]
And then we will return to continue the questioning.
Mr. FRANK. Well, I think I'll go vote with you, Mr. Chairman. We can continue thismy colleagues, I think, may want to continue as we go back.
Mr. COBLE. We'll be back imminently.
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Mr. FRANK. I will go to the floor and defend Justices.
Mr. COBLE. When we left, the gentleman from Massachusetts and the professor from Texas were engaged in dialog, but Barney's not here. We'll pick that up when he comes back, Professor.
The gentleman from California, Mr. Bono.
Mr. BONO. Thank you.
I want to thank you all for testifying, and it's impressive to have such great minds all here at one table and listen.
I, for whatever reason, I got on Judiciary. I haven't figured that out yet, but here I am. [Laughter.]
And so I look at things differently, I think, than my colleagues, especially listening to them debate and listening to the issues.
Judge RADER. Congressman, I did, too, and I'm still trying to figure it out. [Laughter.]
Page 187 PREV PAGE TOP OF DOC Mr. BONO. Oh, well, you, too.
The other day I asked a question about conspiracy, and it was a short question; it took me about 8 seconds, and the debate lasted for two hours, and I never got the answer to my question. It was amazing.
But my point is this: coming from the street, if you will, and coming from nothing to do with government and bureaucracy, when we hear these kind of issues, the Constitution always comes up. Civil rights always comes up. There's always discussions about great cases and great decisions. Yesterday our attorney general brought a tape in. It was a tape of one of his lawyers and a judge. He just wanted to show sometimes the difficulty which he claims happens quite often. This judge was, in my view, at that particular time insane. He wouldn't allow the lawyer to ask a question, and it went on for several minutes, 10 or 15 minutes. Every word that came out of the lawyer's mouth, there was a threat of going to jail or being yelled at and humiliated. And so, again, not being a lawyer, he denied that lawyer her constitutional rights in my view. I mean, it seemed like she had as much right to ask questions and get answers as he did to make all the demands.
What I keep going back to is this tremendous imbalance, especially the judicial area, and I guess some of you were here when I said I was a mayor, and people could say whatever they want, but in a court it is concise that you must adhere to the rules of that judge. However, it seems like you don't have equal rights or near equal rights. When you discuss equal rights, is the abuse of civil rights in a courtroom, OK? I don't know who to ask.
Mr. GRAGLIA. That's obviously not OK, Congressman, and, presumably, there areI don't know if this is a Federal judge or a State judge.
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Mr. BONO. It's a Federal judge.
Mr. GRAGLIA. Well, there certainly are procedures for judicial misbehavior, and that seems like recorded, clear misbehavior by any standard. Now it is the case, as Judge Rader said, in the wise words of Senator Thurmond, that it's important that judges be humble; that's crucial. He's perfectly right about that, because hubris is the occupational disease of judges. They sit there in their robes looking like priests, the only officials we have in American government to have an official uniform. They sit typically in temples, and people have to stand when they enter a room and address them as ''Your Honor.'' And to maintain humility with much of that experience is quite difficult, which is perhaps the best argument for term limits for judges, that no human being can be that honored and obeyed so long without it distorting his mind. And you have judges that, indeed, think they are petty tyrants, and we must have rules within the judiciary for sanctioning such behavior, without a doubt.
Mr. BONO. You bring up a good point. You did want to speak, and I'll let you speak. I just want to go back to one other issue: that being in show business and being successful in show business, and if it happens where you reach heights that you never believed you could reach, it is mindboggling, and you do lose yourself. I mean, you get carried away, and you do have this power. My fear is that power there is so one-sided and maybe too much. Now I don't say ''impeach, impeach, impeach.'' But accountability and equal rights; I think that's very important in the judiciary as well as any other branch of government.
If I can have
Page 189 PREV PAGE TOP OF DOC Mr. COBLE. Mr. Pilon, you had your hand up. Go ahead and answer that very briefly.
Mr. PILON. Yes, Congressman Bono, I think you raise an extraordinarily important issue here. Let me say, first of all, that you're not sure how you got on Judiciary; I, too, started as a rock-and-roll player
Mr. BONO. Well, good.
Mr. PILON [continuing]. And so lives can take unusual twists.
Mr. BONO. They sure can.
Mr. PILON. In any event, the case that you raise sounds like an egregious case. It is not the kind of case, though, that it strikes me is one that is subject to the kind of periodic judicial oversight; rather, it is subject to the kind of legislation that you were discussing yesterday before this committee, especially this idea of moving a disciplinary complaint out of the circuit or court in which it is raised, because the kind of collegiality that you find and that is necessary among members of a court is anathema for adjudicating these disciplinary matters. You simply cannot expect the court or anybody, for that matter, to police itself, starting with the Justice Department or the administration, let us say. You simply cannotif that is true with respect to those bodies, a fortiori it is true with respect to the court, the members of which often work very closely with each other and are in no position to discipline one among them. And so I would strongly urge you to look at the kind of legislation you had before you yesterday because it addresses precisely the kind of problems you're raising here.
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And, finally, insofar as there are any restrictions upon bringing public obloquy upon people of the kind that you have pointed to, those should be addressed directly, because contempt citations, and so on and so forth, against people who would complain about a judgethis is precisely the kind of behavior that we must be able to complain about, that we must have free speech about, and this idea of disrespecting the judge is something that is from another century. It must go.
Mr. BONO. Thank you.
Mr. COBLE. Mr. Pilon, I thank you. I thank the gentleman.
Judge, I'll get to you later. Let me recognize the gentleman from Michigan now, and then I'll get back to you, Judge, before we adjourn. The gentleman from Michigan.
Mr. CONYERS. Thank you, Chairman Coble.
We came here today to have a discussion of judicial misconduct and discipline, and this is the last panel. I haven't discussed with the chairman whether there will be further hearings or a need for them. Most of you have heard the previous testimony from Members and other witnesses. So what is the lesson? Where are we now on this subject? How could this be summed up? We've had quite a range of views, but, from my point of view, we haven't come across much judicial misconduct at this hearing. We've discussed several judges that may be in need of discipline, and no one has indicated that the machinery for that kind of action is defective. So where does this leave your humble Judiciary Committee at this point? What do we do now besides have a late lunch?
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Mr. GRAGLIA. If I were to try to provide examples of judicial misconduct, when Rosemary Bird, Chief Justice of California, she was adamantly opposedBird, to capital punishment, and she reversed all capital convictions. She found some groundsI think it's fair to say she created or made up some grounds to reverse every capital punishment case she saw. That was also what was said of the judge that Ms. Stout, I believe, was talking about. Well, that's judicial misbehavior.
I could give you any number of Supreme Court decisions. For example, you have a Federal statute passed by Congress that said children will be assigned to school without regard to race; children are not to be assigned for a racial balance. And there's a Supreme Court case, Swann v. Charlotte-Mecklenberg, that says it's appropriate to assign children to school on the basis of race, that Congress didn't mean that statute to apply to the South. You have Justice Brennan saying in the notorious Weber case that, yes, the statute says you can't discriminate against whites in employment, that literally understood, Weber has a strong case, but the spirit of the statute was different. The spirit was exactly the opposite of the statute. Well, these are actions that are not taken in good faith.
I don't think impeachment, by the way, is the answer there. What to do?
Mr. CONYERS. Professoryes, that was the question.
Mr. GRAGLIA. All right, what to do? You know, I said I went to the heart of this. I happen to think
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Mr. CONYERS. You've consumed a couple of minutes of my time getting to the question. Now we're going to answer my question.
Mr. GRAGLIA. OK. Unfortunately, I take the position that the problem is much more serious than most people think
Mr. CONYERS. Yes, but what are we to do?
Mr. GRAGLIA. What you ought to do is you ought to start proceedings to have a constitutional amendment that provides that the 14th amendment means something. The heart and soul of our problem is that the Supreme Court now treats the 14th amendment as meaning nothing or anything that they choose it to mean.
Mr. CONYERS. Would you be willing to help our staff draft such an amendment?
Mr. GRAGLIA. Yes, I would.
Mr. CONYERS. Well, I want to accept your invitation, and I've got some staff and I think the chairman does, too, and that would be something tangible that comes out of these hearings, wouldn't it?
Now on another pointand I just thought I heard you rightthe May 17, 1954, decision of Brown and Education was not one that you thoughtwhat did that illustrate to you?
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Mr. GRAGLIA. Well, it illustrated that the Court felt that it was endowed with remarkable power and that it was in a position to work a giant social revolution, changing the position of a third of the country, but it really realized how weak it was, and so it went and hid for 10 years. It made no attempt to enforce the decision. In fact, it maybe extended segregation. The Congress might have acted sooner. It hid for 10 years, but segregation was effectively ended when Congress acted in the 1964 act.
Mr. CONYERS. Was that an example of activism?
Mr. GRAGLIA. Yes, it was. It was an example of perhaps as close to justified activism as one can have. I define activism as holding something unconstitutional that the Constitution does not clearly prohibit. And in Brown they held something unconstitutional
Mr. CONYERS. OK, finally, because the light's on, you've taught constitutional law for howmany years?
Mr. GRAGLIA. Thirty years, yes.
Mr. CONYERS. So that means thousands of young lawyers have come through your constitutional courses?
Mr. GRAGLIA. Yes.
Page 194 PREV PAGE TOP OF DOC Mr. CONYERS. Maybe 10,000?
Mr. GRAGLIA. That might be high. I teach about 100 a year.
Mr. CONYERS. OK. So
Mr. GRAGLIA. A 100 times 30 is 3,000, yes; that's quite a lot.
Mr. CONYERS. And they're now out here practicing law somewhere in the several States?
Mr. GRAGLIA. Yes. Those Texans tend to stick to Texas, unfortunately, but
Mr. CONYERS. And your views, of course, that are reflected here are taught in the course of your teaching at the law school?
Mr. GRAGLIA. That's correct.
Mr. CONYERS. All right, thank you very much.
Mr. COBLE. Thank you.
The gentleman from Florida.
Page 195 PREV PAGE TOP OF DOC Mr. CANADY. Thank you, Mr. Chairman. I apologize for being late to return from our votes.
Mr. Henderson, let me ask you this: what acts of a judge, other than the commission of a crime, do you believe would justify the Congress considering impeachment?
Mr. HENDERSON. Well, Mr. Canady, I think the basis of impeachment is listed explicitly as high crimes and misdemeanors. So actions that fall within the definition of those terms I think would be a basis
Mr. CANADY. I was trying to have a short way of asking you what you thought that meant.
Mr. HENDERSON. Well, I think
Mr. CANADY. That's the question.
Mr. HENDERSON. I think in one sense it means what it says. It means that crimes that are, in fact, felonies or crimes which constitute misdemeanors within the spirit of a serious offense would be a basis for impeachment. The idea of
Mr. CANADY. Well, now, let me ask you this: so you think it has to be an indictable offense, and no conduct other than an indictable offense would justify the Congress considering impeachment? What aboutI don't know if you've heard of this case relating to Judge Nixon, and we're not here to try Judge Nixon
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Mr. HENDERSON. Certainly.
Mr. CANADY [continuing]. But if a judge simply doesn't carry out the responsibilities of his office by dealing with the matters that come before him in a timely way, if a judge refuses to act on cases for years because of an obvious bias, wouldn't that at least raise a question about whether some action should be taken to stop that?
Mr. HENDERSON. Well, I would say this, Mr. Canady: if a judge were found to have ignored his or her responsibility
Mr. COBLE. Mr. Henderson, pardon me. Mr. Canady, please repeat. I was talking to Blaine, and I didn't hear your question.
Mr. CANADY. Well, what I'm trying to get at is, are there any circumstances in which a judge's performance in office could justify impeachment when the judge has not committed an indictable offense?
Mr. HENDERSON. Well, let's assume, for example, that a judge chose not to come to work, chose not to take assignments, chose not to carry out the responsibilities of a judgein this instance, a Federal judge. That individual would not have been indicted for the commission of a crime.
Mr. CANADY. But you think that would be impeachable?
Page 197 PREV PAGE TOP OF DOC Mr. HENDERSON. Well, no, I didn't. What I said, though isI'm using that as an example of an act by an individual judge that might warrant additional scrutiny and review by his or her peers. I take the position, sir, that
Mr. CANADY. Now wait. That's not my question at all.
Mr. HENDERSON. If your question is whether that
Mr. CANADY. Mr. Henderson
Mr. HENDERSON. Sir.
Mr. CANADY [continuing]. You know, I appreciate your testimony; I think it's been very valuable, but this is a pretty simple question.
Mr. HENDERSON. It is.
Mr. CANADY. Now if you don't think that a judge should ever be impeached for anything other than committing a crime, that's a legitimate viewpoint. I don't think I would agree with it, but I'm trying to find out if that's what you think. If not, then
Mr. HENDERSON. Well, I was giving you an answer, sir.
Mr. CANADY [continuing]. I want to get the understanding of what the parameters are for when impeachment is something proper to consider.
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Mr. HENDERSON. I think that's fair. And as I told you
Mr. CANADY. And I'm not talking about peer review.
Mr. HENDERSON. OK.
Mr. CANADY. I'm talking about impeachment.
Mr. HENDERSON. As I said to you, sir, if, in fact, an individual judge commits a crime or misdemeanor, an indictable defense, that's obviously a clear basis for impeachment. Now if an individual
Mr. CANADY. Well, we have all agreed on that.
Mr. HENDERSON. If an individual engages in a dereliction of duty and responsibility, that triggers the kind of peer review that we've talked about. In the event that peer review under those circumstances may be insufficient to address the problem, then you may, in fact, need to pursue additional activity, if you have exhausted the peer review process that is in place. If a judge refuses to come to work and the peer review process that is used finds it impossible to encourage that judge, for whatever reason, to accept those responsibilities, then it may require something more serious. But that is certainly the most limited and extreme circumstance one could find.
Page 199 PREV PAGE TOP OF DOC Mr. CANADY. OK, you can't
Mr. HENDERSON. I think in most instancesin most instancesthe basis of impeachment means what it says: high crimes and misdemeanors.
Mr. CANADY. But you would recognize a limited class of other cases? Let me say, I agree with you. I think that impeachment should be very much a last resort, and if there's any other way to solve the problem, that should be attempted at length before consideration of impeachment is entertained. And I am not one of those who has suggested that we impeach any judges, although I probably have the distinction of being maybe the only Member here, one of the few Members of the Congress who's actually filed a resolution of impeachment against a Federal judge, who happened to be sitting in a Federal penitentiary convicted by bribery, drawing his salary as a Federal judge. Now the Judicial Conference was taking its good time in dealing with it. I thought we had a constitutional responsibility here in the Congress to cut off his salary and remove him from office. There was no question about his guilt of the offense of bribery. But I think that, again, that's a case that's very clear.
Let me shift a little here. There's a debate about what the circumstances are when Congress is justified in proceeding with impeachment proceedings. Let me ask you, Mr. Henderson, do you think the decision in the Housewith the Chair's indulgence, I'd just like to finish this question. If the House proceeds with impeachment proceedings or the Senateand then the Senate acts on that and convicts, are the decisions of the House and the Senate in connection with impeachment matters that are reviewable by the Federal courts?
Mr. HENDERSON. I believe, sir, thatare you asking me the question
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Mr. CANADY. Yes.
Mr. HENDERSON [continuing]. Of whether action taken by the House in pursuit of an impeachment against anyone in particularor are you just saying if they exercise
Mr. CANADY. Yes, if the House impeaches somebody, is that something that's subject to review in the Federal courts? We've been talking a lot about judicial review. I just wonder, in your view, how that should apply in the context of impeachment.
Mr. HENDERSON. Certainly one can petition the court to review whether the procedure used by Congress is consistent with the requirements of the Constitution. Now in most instancesin most instancesI would think that concern about separation of powers would limit the scope of judicial review of a particular action to the most egregious of circumstances. But if the question is, would you be summarily thrown out of court merely because you sought to have an action taken by Congress reviewed, the answer is, no, you are not per se barred from seeking relief in court.
Mr. CANADY. With the chairman's further indulgence, I'd just like to ask if there are other members of the panel who would like to comment on that particular question.
Mr. PILON. If a petition went to the court, I think the court would treat it as a political question.
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Mr. CANADY. Professor Graglia.
Mr. GRAGLIA. I think that's probably the case. The court has refused to pass on questions of whether constitutional amendments were properly adopted, calling it a matter coming under the so-called political question doctrine. And I could not imagine that if Congress said that this judge has committed impeachable offenses, as they defined it, and then removed him, that the court would reverse that. I wouldn't think so.
Mr. CANADY. OK. Judge, do you have a comment on that?
Judge RADER. No comments on that specific issue, which could come before
Mr. CANADY. OK. Obviously. [Laughter.]
Well, again, I want to express my gratitude to all the members of this panel. Your testimony has been very helpful.
Mr. COBLE. I thank the gentleman from Florida.
The lady from California.
Ms. LOFGREN. Thank you, Mr. Chairman.
Page 202 PREV PAGE TOP OF DOC As I've listened here this morning, I've found it an interesting panel. We have the Cato Institute, which is, I think, acknowledged by all as an extremely conservative group. I think you used that same word really
Mr. PILON. No, no. We eschew the term ''conservative''
Ms. LOFGREN. Oh, do you? I didn't mean to insult, but[Laughter.]
Mr. PILON. We call ourselves classical liberal or libertarian.
Ms. LOFGREN. All right, I want to use the precise terms.
Mr. PILON. Jeffersonian would be another way of putting it.
Ms. LOFGREN. In reading your testimony, which I found really to be excellent and well-reasoned
Mr. PILON. It contains nothing but true sentences. [Laughter.]
Ms. LOFGREN. And written by a very modest person. [Laughter.]
Although I don't share your overall philosophy, I thought that your analysis of the role of the judiciary and its importance in protecting the rights of the minority to be right in keeping with all of, I think, the thought that I have seen throughout my life on the role of an independent judiciary.
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And listening to the professor's comments, I must say, thank God for the first amendment; we can all say what we think is correct and true, but I found your views to be unusual at least, not what one commonly hears from law professors. We do have a letter signed by, I think, 110 law school deans, including your own dean at the University of Texas, strongly taking a contrary view. So it was good to have you here with
Mr. GRAGLIA. How is it contrary? Undoubtedly, they're against widespread use of impeachment.
Ms. LOFGREN. I don't have the letter right in front of me. Mr. Delahunt asked to have it placed in the record, and we'll get you a copy of it. I'd provide it to you now, if I had it.
As I've listened to your testimony, Professor, I'm struggling to understand fully your point of view because, in all honesty, it doesn't make sense for me quite yet. Thinking about what the Court has done recently, striking down measures that the Congress, the legislative branch, adoptedfor example, the recent Court decision that held that Congress lacked the ability to regulate certain gun activities near schools; would you include that decision as judicial activism of a sort that should be condemned?
Mr. GRAGLIA. As a matter of fact, yes. I wrote a long article in the Texas Law Review severely criticizing the Lopez case.
Ms. LOFGREN. Recently, the Court has also been moving in a different direction in terms of the takings clause, which I would argue has corrected some overstepping that occurred in the past. Regarding the recent decisions that have declared as unconstitutional takings some of the zoning regulations that are so popular in the West in suburban communities, what's your view of those?
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Mr. GRAGLIA. Well, my view is that they are definitely judicial activism. Remember, judicial activism as I define it is holding things unconstitutional that are not clearly unconstitutional. You say you have some difficulty with my position. I think it could hardly be more simple. Courts should not hold anything unconstitutional that isn't; that's all, unless the Constitution clearly disallows it. You know, this is an extraordinary power that this committee of nine lawyers holding lifetime appointment, unelected, that they should sit there and pass upon the works of the elected representatives is entirely inconsistent, as I say, with separation of powers, federalism, representative self-government. The only way you can possibly justify it is, if the judges can say, look, we're not doing it; the Constitution happens to say you can't do that.
Ms. LOFGREN. Let me ask a followup question.
Mr. GRAGLIA. But that's very easy. Excuse me. If I may say, you're right about the taking cases; that is activism. I think that very little will come of those cases. However, it remains the case that the overwhelming bulk of Supreme Court opinions continue to be the ACLU position. The important decisions on things like VMIyou can't have an all-male military schoolnow where do you suppose that is in the Constitution? They made that up.
Ms. LOFGREN. Professor, if I may
Mr. GRAGLIA. Or term limits
Page 205 PREV PAGE TOP OF DOC Ms. LOFGREN. I also have to live by the 5-minute rule, so I'd like to ask another question, if I could, because there are other panelists that I think would like to speak.
Thurgood Marshall for many, many years refused to support capital punishmenthe always dissented on death penalty cases. Would you consider that activism and the kind of activity that should have subjected Thurgood Marshall to an impeachment inquiry?
Mr. GRAGLIA. Now, there's no question that it's activism, the first part of your question. Indeed, the Constitution explicitly recognizes, contemplates capital punishment in at least in three places, quite clearly.
Ms. LOFGREN. So your answer would be
Mr. GRAGLIA. So, clearly, it's activism. So for a judge to say that capital punishment is unconstitutional in a Constitution that recognizes it is in defiance of the Constitution. Now I would not suggest impeachment, however, because we have permitted judges to do this for at least the last 40 years, and, indeed, in fact, much longer. Impeachment is much too blunt, crude, and, in my view, an inappropriate way to deal with that kind of problem.
Ms. LOFGREN. Let me hear from Mr. Pilon, if I could, who's desperately wanted to speak earlier
Mr. PILON. Just one
Page 206 PREV PAGE TOP OF DOC Ms. LOFGREN [continuing]. If we could let him address these issues, then I'll stop.
Mr. PILON. Yes, you've done a marvelous job, Congresswoman Lofgren, of flushing out Lino, although, with all due respect, it's not terribly hard. The beauty of Lino is that he's clear, crisp, and dead wrong. His idea that Lopez was wrongly decided, that the takings case is wrongly decided, and that these are cases of judicial activism, bring us back to the fundamental point: his argument is with Marbury v. Madison. His argument is with judicial review as an institution. He isand I've told him this oftenuncomfortable with the constitutional Republic that we live under. He is a parliamentarian at heart. He would be much happier if we were ruled by changing majorities under periodic elections, majorities that essentially had plenary power, and when we don't like what they're doing, we just vote them out. It goes back to Wilmore Kendall at Yale, who is the source of a lot of this thinking, and it really is a quite simple view. He's right; it's very simple, but it's not our system.
Ms. LOFGREN. With the chairman's indulgence, I now have the letter, and I'll make a copy for you, Professor, but specifically the quote, I think, that completely contradicts your point of view is, ''Thus, our Founding Fathers created an independent Federal judiciary to interpret the Constitution, protect the civil liberties and fundamental rights of each and every citizen against the tyranny of the majority.'' And it goes on into some detail in defense of our current system, signed by 110 law school deans, including your own
Mr. GRAGLIA. I have no difficulty with that, obviously, as long as they're interpreting the Constitution. If the Constitution says, for example, you can't deny the vote to women, which it does, and if any State then said, ''We're going to deny the vote to women,'' I'd have to say that's unconstitutional. So I'm fully in
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Mr. FRANK. Would the gentlewoman yield to me for one question?
Ms. LOFGREN. Certainly.
Mr. FRANK. Professor Graglia, because I'm fascinated by this, you've obviously done a lot of reading. You're very scholarly about this. Has Congress, in your judgment, ever passed an unconstitutional statute or have you ever seen one that was unconstitutional?
Mr. GRAGLIA. It would be easier for me to answer a State. I think States have passed unconstitutional statutes, yes.
Mr. FRANK. It would probably be easier if I asked you if two and two were four, but that's not what I asked you.
Mr. GRAGLIA. Right, right.
Mr. FRANK. Particularly since you have the 14th amendment problem with what it covers, has Congress, in your judgment, ever passed an unconstitutional statute? That gives us a sense of what the scope of your reading of the Constitution is.
Mr. GRAGLIA. You could certainly make a very good argument that the Alien and Sedition Acts were unconstitutional. On the other hand, since they were passed so close to the time of the Constitution and the Bill of Rights, it also could be said to indicate that the first amendment was thought to mean an awful lot less than we think.
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Mr. FRANK. Anything in this century you can think of that was unconstitutional? Only the Alien and Sedition Acts?
Mr. GRAGLIA. Nothing readily comes to mind, no.
Mr. FRANK. OK, I appreciate that because I think that does have an illustrative part. Thank you.
Mr. GRAGLIA. Do you have one in mind, Congressman, if I may ask you?
Mr. FRANK. Pardon?
Mr. GRAGLIA. Do you know of an unconstitutional statute Congress has passed?
Mr. FRANK. Oh, I thought the Communications Decency Act, for instance, whereI agreed with Justice Scalia and Justice Kennedy and Rehnquist that banning indecent speech would be a mistake. If we banned indecent speech, I suppose I shouldI'll act against interest here. If we banned speech I considered indecent, we'd be through by Wednesday morning every week. [Laughter.]
Mr. GRAGLIA. No, I agree with you it would be a mistake. I agree with you it would be a mistake, which is what you said
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Mr. FRANK. I think it was unconstitutional. I do think no law
Mr. GRAGLIA. But whether it was unconstitutional is another question.
Mr. FRANK. Well, but it was Congress; we don't have a 14th amendment there, and the 1st amendment does say no law restricting speech. I think indecent speech is speech. It wasn't banning indecent gestures; it was banning indecent speech. And if no law doesn't mean that, then I don't know what it means.
Mr. GRAGLIA. Congressman, you know it doesn't ban perjury prosecutions; it doesn't ban Federal statutes to make it a crime to
Mr. FRANK. You think it does notthat it's OK to ban indecent speech or offensive speech?
Mr. GRAGLIA. Well, you saidCongressman, you're much too sophisticated to say it says no and that gives us our answer.
Mr. FRANK. Right, but it doesn't mean anything
Mr. GRAGLIA. I'm afraid the chairman will cut us off before we fully settle this.
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Mr. FRANK. No, Mr. Graglia, I think he'll give us another minute to say this, Professor Graglia: I'm not saying it's automatic, but you're saying it's automatically not. I'm saying that at least it getsyour view was, unless it's very clearyou have interpretedI've asked you if Congress has ever passed an unconstitutional statute. You said not since the Alien and Sedition Acts
Mr. GRAGLIA. No, Congress can read the Constitution. You people are literate.
Mr. FRANK. No, you're just changing the subject, Professor Graglia. We're talking now about what ''no'' means, and it does seem to me that you have interpreted that absolutely out of existence, and I do think, when it says you should make no law restricting the freedom of speech, and you say people can't talk indecently, you have violated that, and when you tell me that we haven't violated it, that because we can ban perjury, we can also ban indecent speech, I think the clarity
Mr. GRAGLIA. But that doesn't mean that it doesn't mean anything. There are some things Congress can't do. For example, if Congress passed a law saying no book shall be published prior to having congressional imprimatur, that's unconstitutional. Now Congress doesn't pass that law.
Mr. FRANK. Right.
Mr. GRAGLIA. Or if Congress passed a law, to use the example
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Mr. FRANK. Right, but Congress has never, in your judgment, since the Alien and Sedition Act passed a law that was unconstitutional. I guess I shouldn't quarrel with you because we have never gotten higher grades from anybody, and I will accept the compliment. [Laughter.]
Mr. COBLE. Is the lady from California finished?
Ms. LOFGREN. Yes.
Mr. COBLE. To shift from the spirited exchange between the gentleman from Massachusetts and the professor from Texas, Mr. Pilon, I conclude by your generous comments to the gentlelady from California that you are now holding her harmless for having labeled you a conservative. So you all have made up?
Mr. PILON. Yes. In fact, she is immune
Mr. COBLE. Very well.
Mr. PILON [continuing]. As the Constitution says, for anything she says in these proceedings.
Mr. COBLE. Well, our final member, who is our honorary visitor today, the gentleman from Tennessee, Mr. Bryant.
Page 212 PREV PAGE TOP OF DOC Mr. BRYANT. Thank you. I, again, thank the chairman for allowing me the courtesy of speaking to this very distinguished panel. I certainly respect the credentials and the background that you all bring into this hearing. I suspect I disagree with some of the things some of you have said, but, again, I do respect it greatly.
My curiosity is on that evil ''I'' word, ''impeachment.'' But I do see it in the Constitution, and I do see it as a power that Congress has and one that we have to review and look at as the occasion arises. We are subject to representing people that elect us, and when we have people circulating petitions with 27,000 signatures on it about a judge and calling for his impeachment, we have to pay attention. We don't have life tenure. We're not teaching in a law school with tenure or working for an organization. That's our job to pay attention.
So when I see this and I hear, and certainly know, that there are instances in the pastI respect the separation of powers and the independence of the judiciary. I understand that. I know we share that view. But when I see the Court going on to our side of the fence, and legislating tax increases and things like that, and I don't really see an uproar about that particularly, and I see it upheld by our Supreme Courtor especially I see a judge, like the one in Nashville in the middle district who apparently is substituting his own personal views or biases against the death penalty in place of the lawit causes me concern. I would love for him to come out and admit he's doing that, but I haven't found too many judges to do that.
You have to look at the record. That's the only way you can. Judges don't go out and give speeches at the Rotary and say they're against the death penalty.
Page 213 PREV PAGE TOP OF DOC So I'm curious as to what each one of you thinks about, Mr. Henderson, you've talked about high crimes and misdemeanors, the other provision that's tied specifically to life tenure for judges. The President doesn't have it. The President now has term limits. Certainly the other branch of government has term limits in the sense that we face the electorate every 2 years or 6 years. But, clearly, the Federal judges have a life tenure.
And the attachment, based on good behavior, seems to carry more, I think, importance to it than what one of our prior witnesses attached to it. And if you accept the fact that high crimes and misdemeanors, which I don't accept, but accept the fact that it means a crime, what does good behavior mean then?
Mr. GRAGLIA. I think you would have a very difficult time, it would be inappropriate, to try to impeach a judge because of what he claims to be his interpretation of the law, because we have allowed judges to make up the law entirely out of whole cloth. Judge Russell Clark has now issued orders that are approaching, if not exceeding, $2 billion in Kansas Cityabsolutely depriving the rest of the school systems of Missouri of funds. The roofs leak; the driveways are unrepaired$2 billion and the orders keep coming out, and they're obeyed. And I sit here and wonder, When does Congress say no? If $2 billion is not enough, what is it, $10 billion? A hundred billion? Is there some point where you say no? Could you impeach Judge Clark for doing this? Of course not. He's doing it subject to control of the eighth circuit. If those opinions, if those orders are enforced, the eighth circuit has approved them, and the Supreme Court has either approved them or, more likely, has refused to review them.
Can you say to Judge Clark, ''You're making this up, Judge Clark. You have no authority to do this.''? We'd be perfectly right, but everything the Supreme Court does is made up and they have no authority to do, either.
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Mr. BRYANT. Well, let me ask you, should we then, if we disagree with Judge Clark, pass a constitutional amendment to change that?
Mr. GRAGLIA. I think the problem
Mr. BRYANT. Or why can't we impeach him?
Mr. GRAGLIA [continuing]. Is very serious and very basic. We simply have to say that constitutionalism, judicial decisionmaking according to a Constitution that has knowable meaning, is one thing and acceptable. It's not parliamentarianism, but it is defensible. What our judges have done forever, is made of the due process and equal protection clauses of the 14th amendment carte blanche. So if they want to say that equal protection means that a State cannot have an all-male military school, that's what it means.
When Chief Justice Charles Evans Hughes said, ''We're under the Constitution, but the Constitution is what the Court says it is,'' someone said he was wrong. Well, he is right as a practical matter, at least. That shouldn't be the way it is, but that surely is what the case is now. And the only way we are ever going to return legislative power to the legislatures and take it out of the courts is by an amendment that limits the 14th amendment to something specific. What it was supposed to mean was no racial discrimination. Make it mean that
Mr. BRYANT. OK.
Page 215 PREV PAGE TOP OF DOC Mr. GRAGLIA [continuing]. And you have something.
Mr. BRYANT. Thank you. Let me go down to Mr. Henderson.
Mr. HENDERSON. OK.
Mr. BRYANT. Again, my basic question is, what does that provision in the Constitution that talks about good behavior mean in relation to impeachment?
Mr. HENDERSON. I think it is very difficult, Mr. Bryant, to give you a clear and simple answer about what that phrase means. I mean, as you say, there is a body, a limited body, of law which has sought to interpret it. But, obviously, there's a certain inherent vagueness to the term and the way it's been constructed.
I will say this, though, going back to your original point, which was, how do you as a Representative respond when a majority of your constituents says that a particular judge has either engaged in activity or hasn't engaged in activity which has impacted them, and it's a real problem, or when a judge tries to impose, for example, as you cited as an example, tax increases to implement some sort of constitutional solution or remedy to a problem, and Professor Graglia cited the example of the Federal judge in Missouri who has sought to impose taxes to benefit children who have been adjudged victims of discrimination in their educational system.
I can only remind you, there's a provision in the bill that was discussed yesterday, H.R. 1252, that seeks to limit the ability of Federal judges to impose tax relief, and it's based on the assumption that judges exceed their authority when, in fact, they move to impose taxes on the citizens. It's a rareit's rarely used, as you know, as a power.
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But immediately after Brown was decided by the Court, a number of school districts sought to frustrate the implementation of Brown by choosing not to levy taxes on the citizens of that State, so that they would not have the resources needed to implement the constitutional remedy that the Court had determined. The Supreme Court, in a decision called Griffin v. Prince Edward County Board of Education, a 1964 decision, upheld the ability of the courts to impose taxes to address those kinds of specific problems. This is not a power that has been used very often. It's certainly not a power that's been abused.
But where you've demonstrated that there is little option in order to carry out a remedy to address a constitutional violation other than to levy the power of taxes on citizens, it seems to me thatand the Court has heldthat that's a reasonable and necessary step to take. We're not advocating that every judge should resort to levying taxes for everyto develop remedies to every violation he or she identifies, but those are clearly examples where such power is needed.
And so the provision in H.R. 1252 is especially troubling because it amounts to a level of court-stripping. It's taking away from the Federal judges now the power that they have, and it's intended to respond to a particular case that people think may constitute a form of judicial activism or abuse.
Mr. BRYANT. Thank you.
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Mr. PILON. Yes. Here I'm afraid I've got to come down on Lino's side for a change. He's alluding, of course, to the Jenkins cases, three of which have made it to the Supreme Court.
This issue of judicial taxation or structured remedies is an extremely troubling issue under our Constitution; there is no power to tax. I testified on hearings on the subject of judicial taxation last year, and out of those hearings came the part that is included in the bill that you discussed yesterday. And it seems to me
Mr. BRYANT. Mr. Pilon, isn't the Supreme Court going to rule that unconstitutional?
Mr. PILON. Unfortunately, Lino's right; the Supreme Court has, except for the last time when it pared it back substantially, in Jenkins III
Mr. BRYANT. Aren't they going to rule this unconstitutional, if we pass it?
Mr. PILON. Oh, Ithat's a good question. It's conceivable that they could, althoughbecause it does strip the courts of a certain power, but it strips them of a power they never had to begin with on my reading of the Constitution. This idea of judicial taxation is an extraordinaryI mean, if there was anything that was at the center of the founding of this country, it was the issue of taxation; no taxation without representation. Clearly, the courts are not representative. You people are the representatives. If you want to taxthe proper role of the judge in this case is to say, ''Look, do it the right way or abolish this public institution, whether it's a jail, a school, or whatever the case may be. But I am in no position to order taxes.'' I mean, once the judiciary goes down that road, the implications are absolutely profound and mindboggling. And I think that this is the kind of thing that you should venture out into, and let the Court thenlet the Court decide, no, we won't do it, and let it point to that provision in the Constitution that authorizes the judiciary to imposeor to tax.
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Mr. BRYANT. But my point isdoes anybody believe that the good behavior language in the Constitution is an additional basis for impeachment? That's my question.
Mr. PILON. ThatI'm sorry?
Mr. BRYANT. The good behavior language in the Constitution, article III, is a basis, in addition to high crimes and misdemeanors, for impeachment.
Mr. PILON. It is one of thoseit is one of those deliberately ambiguous areas, in my judgment, that leave it up to the judgment of people like you.
Mr. GRAGLIA. It's in the Constitution. So there's no question that it's a basis for removal. Judges have to have good behavior. Now what do you mean by good behavior? If a judge behaves as Congressman Bono indicated, or if, indeed, a judge does go insaneyou said he was saying insane things, and we've had examplesJudge Pickering was an early example. Like other people, a judge can go insane and behaves totally inappropriately; even though he has committed no crime, clearly is, or should be, removable on that basis.
Insofar, however, as we are trying to remove judges because of the content of their rulings, that will be extremely difficult and probably inappropriate.
Mr. COBLE. I'm going to get to you, Judge. I was just going to say to the gentleman from Tennessee, Alexander Hamilton, I think, probably thought so, but that will be for another day.
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Judge RADER. Ultimately, the question of what is an impeachable offense lies with Congress. They will set that standard under the Constitution. Congress has wisely refused to venture into the area of impeachment with regard to judicial opinions and judicial results. Since early in our Republic when Samuel Chase was acquitted after being impeached, a very wise decision, Congress has never ventured to use impeachment when it disagreed with a judicial decision.
I've heard and sat here and listened with some pain to charges being lodged against some of my colleagues. I hope that any inappropriate conduct, it's recognized, can be redressed under the Judicial Discipline and Tenure Act of 1978, which gives judicial councils the injunction to do that, which they have, I believe, undertaken diligently to do.
I hope that any individual instances of human frailtyand every branch will have some human frailtyare not the justification, however, for charging that the judicial branch has not carried out its responsibility of protecting individual rights and enforcing the laws and Constitution of the United States. I think the Judicial branch can stand alongside Congress as very proud of the job that it's done in protecting individual freedoms, and I think that we should keep our eye on that larger context of the institutional integrity of our Constitution, rather than varying therefrom to focus too much attention on individual variances from that high standard.
Thank you, Mr. Chairman.
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Mr. GRAGLIA. If I might comment on that, as you referred to Alexander Hamilton, who, indeed, was our original theorist of judicial reviewas you know, it's not explicitly provided for in the Constitution, as I would expect it to be, like the power, the veto power of the President, if it really were thought through and provided for. But, nonetheless, Hamilton proposed it, was a theorist of it, and he said, look, we need this as a means of preventing usurpation of power by the legislature. To which the question arises: ''But then what happens if there is usurpation of power by the judiciary?'' And he said, ''You can impeach them.''
Well, I don't know if that was entirely candid. It certainly was unrealistic. When Jefferson tried it, it didn't work, causing Jefferson to conclude, quite rightly, that ''impeachment is a farce,'' he said, ''not even a scarecrow,'' in his terms.
If we had a practice of readily impeaching justices for what we consider usurpation of power, it would be a significant limitation on judicial power but we have not done that. And the idea of impeaching judged on the basis of how they interpret a law or a constitution is almost always such an arguable question that it's very difficult and probably inappropriate.
Mr. COBLE. The late William Delahunt has joined us. Bill, you have questions you want to put to these people?
Mr. DELAHUNT. Yes, I'll make it brief, and I'll direct the first one to Judge Henderson, and then the second one to Mr. Henderson, Mr. Pilon, and Mr. Rader. I'll give Professor Graglia an opportunity to catch his breath.
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But earlier you made a commentand I don't want to take your intent and impose my ownbut you related your feeling or your opinion that Congress ought to be very careful in interfering in the structure and the administration of justice. And my point wasor my point is, ratherthe testimony that we heard this morningand, again, I'm not focused on the particular case, and I'm not in any way alluding to that particular case, and, in fact, I think I tried to make clear the point that counsel for the defendant was not here.
But in the area, for example, of a rule which would bring intowhich would be parallel to the assignment of cases as they come into the Federal system, that's done on a random basis, I would think that Congress, ought to consider a rule bringing petitions for habeas corpus emanating from State cases into a similar system, where they would be randomly selected. And I just wonder if you have an opinion on that.
Mr. BRYANT. Would the gentleman yield quickly?
Mr. DELAHUNT. Yes.
Mr. BRYANT. Just as a clarification, I think there has been a misconstruction of the facts in that particular case because, just for whatever it's worthand whether we want to change a rule and require this, I think most courts have a selection, a random selection process already in place. But to clarify the Nixon case, Judge Nixon was not the Chief Judge at the time this agreement was made. He had the unconstitutional prisons condition lawsuit in his court. The then-Chief Judge in that district said, ''Why don't you just take these habeas cases, too, since you've got that case.''
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Mr. DELAHUNT. So all of the death penalty cases ended up in front of
Mr. BRYANT. That judge at that point. Judge Nixon subsequently, rotated to become Chief Judge, but he did not, as the Chief Judge, assign all the cases to himself. That was by agreement.
Mr. DELAHUNT. I'm glad that I'm informed. But is there aand this is for my educationis there a process by which habeas cases are randomly assigned as ifemulating the State courtsas if they had just on the first instance had entered into the Federal system?
Mr. HENDERSON. Thank you, Mr. Delahunt. I understand your question; I'm not sure that I can answer it. I believe there are rules of procedure within the jurisdictions of the circuit courts for assigning cases as they come for consideration before those courts. Whether there is a uniform rule that has been adopted among all the circuits that would apply across the board, I don't know the answer to that.
Mr. DELAHUNT. Did youlet me interrupt
Mr. HENDERSON. I would not support the idea of Congress imposing a rotational requirement on the courts for the consideration of these cases, even though I understand the purpose of that effort is well-intentioned. It is intended to ensure, you know, random rotation and selection.
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My own view is that the courts themselves are better able to determine the body of cases before them, and I think that there are instances where the judges who will make assignments and the procedure that their peer judges have established is the better approach to take.
You cited in the beginning of your question my view of congressional restraint in affecting procedures of the court, and you are correct; I do believe that the Founding Fathers and the system they've developed, even where I may disagree with individual decisions, is itself a system that has tended to work, and there are self-corrective devices, even
Mr. DELAHUNT. But you would concede that Congress does have authority in terms of rulemaking?
Mr. HENDERSON. Certainly I think Congress has the authority to appoint judges and to adopt rules that may affect cases that come before those judges. And, again, whetheryou may have the authority to do so and then choose not to exercise it, maybe based on the considerations of some of the issues that we've talked about today.
Mr. DELAHUNT. I just have one other question, and I heard the dialog concerning taxation, and Mr. Pilon expressed some rather strong sentiments. And I just would pose this question: In terms of judicial power, the reality is that if the court does not have the capacity to fashion an appropriate remedy, don't we have a situation where court orders simply can be ignored? I agree with those on the panel and others who advocate that it should be the ultimate remedy, but I would expect and suspect that in many cases it is considered a remedy of ultimate resort.
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Judge RADER. Mr. Delahunt, you are talking about congressional rules that might affect the assignment of cases. We are separate and equal branches. It seems that the procedural prerogatives of the judicial branch probably ought to lie with the judicial branch. I don't suppose it would be an appealing idea for you to have another branch setting your procedures. I don't suppose you would like the President to tell you the order for hearings and what bills you can have hearings on, and which order for Congressmen to ask questions. I suppose you would be equally offended if the judicial branch were to try to tell you how to run your day-to-day business. Similarly, I think that interbranch respect and comity would counsel very strongly that Congress would ask itself very sincerely whether it wished to dictate in that kind of detail how the Judicial branch runs its business.
Mr. DELAHUNT. Thank you.
Mr. PILON. Yes, the only problem with what Judge Rader has just said is that there is authority under article III, section 2, of the Constitution to control some of the proceduresif not the procedures, certainly the case law of the courts. I'm trying toI'm struggling to find it.
Mr. DELAHUNT. I think I'm familiar with the provision
Mr. GRAGLIA. It says, ''such regulations and exceptions as the Congress shall make.''
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Mr. PILON. Yes.
Mr. DELAHUNT. Right. I think that
Mr. PILON. So it isn't quite coequal.
Mr. DELAHUNT. Just reclaiming my time for a moment, I think that Mr. Rader was making the point that, in terms of comity
Mr. PILON. Sure.
Mr. DELAHUNT [continuing]. It is a moreit's a preferential route to take.
However, I was reviewing last night a report put out by the Congressional Research Service, and it was fascinating in terms of the history, given the tug and the pull and the invitation, if you will. And if it would be, in fact, supportive of public confidence in terms of what occurs within the judicial system, I would respectfully invite the judiciary to take a look particularly at the rule, which I thought was universally applicable, of random assignment. I think, again, that gives confidence to the public at large. So please accept that as an invitation of a freshman member of a subcommittee sitting here.
Mr. PILON. To go back to your question, though, that you put to me about
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Mr. DELAHUNT. On taxation.
Mr. PILON [continuing]. Judicial taxation or whether the courts should be free to fashion remedies, even affirmative remedies, perhaps under its power of equity, which would seem to me the only way it could be done
Mr. DELAHUNT. Right.
Mr. PILON [continuing]. It's an extraordinarily vexing issue. To be sure, courts can fashion affirmative remedies when you're dealing with civil cases such as domestic law cases, divorces, child support, and things of that sort. When you move from that, however, to public law questions, it seems to me that you get into this awful question of judicial taxation, and the proper response there, I think, is to avoid at all cost moving toward principles of equity by way of remedies, and, in effect, allow the court to say to the political institution, to take a stock case, ''If you're going to imprison these people, they have to be imprisoned under humane conditions. You cannot simply imprison them and feed them once a week because you're unwilling to raise taxes.'' So the proper answer is, let them out of prison until you're prepared to imprison them under humane conditions
Mr. DELAHUNT. You've spawned one further question, and if I can indulge my friend from North Carolina to pose itI think it was back in January, the first hearing of this committee was on the balanced budget amendment. And there was a professor from, I think, the University of Southern California, and I asked him the question: in the event of a budget impasse between the President and Congress, in an attempt to comply with the provisions of the balanced budget amendment, it would seem that the only recourse would be to allow some activist judge to resolve that impasse, and he agreed with me. And I'd be interested in your response because I was arguing that what we were doing as Congress was conceding legislative prerogatives and legislative authority to the other branches, and most likely the judicial branch.
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Mr. PILON. Congressman Delahunt, coming from the Cato Institute, it will not surprise you to hear me say that that is precisely the wrong answer. [Laughter.]
There are worse things than having the Government shut down. [Laughter.]
Mr. DELAHUNT. I see. [Laughter.]
Thank you very much, Mr. Pilon.
Mr. COBLE. Mr. Pilon, there are many people in my district who said those very words to me back when they were shut down. When I say ''we,'' I think we and the President jointly did that, but we heard the same thing.
Folks, this has been a good hearing today because of the presence of three panels and because of the participation in our subcommittee. For that, I thank you.
Judge Rader, you appear to be a humble judge. So having said thatand this is subject to interpretationyou said that you had heard some unkind things said about some of your colleagues. I guess that's subject to interpretation, but I guess, because weMr. Bryant says we hear a lot of unkind things saidor Mr. Bono said itmaybe we're immune to it, but it hadn't seemed all that unkind to me. And I share the view of some of you all, and I'm going to remove mywell, I'll keep my impartial hat on, but I have problems, my friends, with lifetime appointments to anything. The Constitution I don't think says ''life.'' I just think it says ''tenure during good behavior,'' which of course transfers into lifetime tenure. And, Judge, I don't mean that personally against you or Judge Centell, but lifetime appointments to anything bother me.
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Having said that, I want to thank you all again, and I want to announce that the oversight hearing on judicial misconduct and discipline is hereby concluded. The record will remain open, however, for 1 week.
Thank you all again for your cooperation, and we stand adjourned.
[Whereupon, at 1:41 p.m., the subcommittee adjourned.]
JUDICIAL MISCONDUCT AND DISCIPLINE
COURTS AND INTELLECTUAL PROPERTY
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
Page 229 PREV PAGE TOP OF DOCONE HUNDRED FIFTH CONGRESS
MAY 15, 1997
Serial No. 29
Printed for the use of the Committee on the Judiciary
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
STEVEN SCHIFF, New Mexico
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
Page 230 PREV PAGE TOP OF DOCSONNY BONO, California
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
THOMAS E. MOONEY, Chief of Staff-General Counsel
Page 231 PREV PAGE TOP OF DOCJULIAN EPSTEIN, Minority Staff Director
Subcommittee on Courts and Intellectual Property
HOWARD COBLE, North Carolina, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
SONNY BONO, California
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah
BILL McCOLLUM, Florida
CHARLES T. CANADY, Florida
BARNEY FRANK, Massachusetts
JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
ZOE LOFGREN, California
WILLIAM D. DELAHUNT, Massachusetts
MITCH GLAZIER, Chief Counsel
BLAINE MERRITT, Counsel
VINCE GARLOCK, Counsel
DEBBIE LAMAN, Counsel
ROBERT RABEN, Minority Counsel
Page 232 PREV PAGE TOP OF DOCC O N T E N T S
May 15, 1997
Coble, Hon. Howard, a Representative in Congress from the State of North Carolina, and chairman, Subcommittee on Courts and Intellectual Property
Barr, Hon. Bob, a Representative in Congress from the State of Georgia
Delahunt, Hon. William D., a Representative in Congress from the State of Masschusetts
DeLay, Hon. Tom, a Representative in Congress from the State of Texas
Fein, Bruce, McLean, VA
Gamble, Nicki Nichols, president, Planned Parenthood League of Massachusetts
Graglia, Lino A., A. Dalton Cross Professor of Law, University of Texas School of Law
Henderson, Wade, executive director, Leadership Conference on Civil Rights
Hostettler, Hon. John N., a Representative in Congress from the State of Indiana
Jipping, Thomas L., M.A., J.D., director, Free Congress Foundation's Center for Law & Democracy
Lowey, Hon. Nita, a Representative in Congress from the State of New York
Pilon, Roger, Ph.D., J.D., senior fellow and director, Center for Constitutional Studies, Cato Institute
Page 233 PREV PAGE TOP OF DOC Rader, Hon. Randall R., circuit judge, U.S. Court of Appeals for the Federal Circuit, on behalf of the Federal Judges Association
Stout, Charlotte Ann, Greenfield, TN
Tanner, John S., a Representative in Congress from the State of Tennessee
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Barr, Hon. Bob, a Representative in Congress from the State of Georgia: Prepared statement
Delahunt, Hon. William D., a Representative in Congress from the State of Massachusetts:
Letter dated May 13, 1997, to Speaker Gingrich, from 110 deans of law schools
DeLay, Hon. Tom, a Representative in Congress from the State of Texas: Prepared statement
Easley, Rebecca, Burns, TN: Prepared statement
Fein, Bruce, McLean, VA: Prepared statement
Frank, Hon. Barney, a Representative in Congress from the State of Massachusetts: Letter dated May 12, 1997, from Richard J. Kelliher, town administrator, and Daniel C. O'Leary, police chief, Town of Brookline, MA
Gamble, Nicki Nichols, president, Planned Parenthood League of Massachusetts: Prepared statement
Graglia, Lino A., A. Dalton Cross Professor of Law, University of Texas School of Law: Prepared statement
Henderson, Wade, executive director, Leadership Conference on Civil Rights: Prepared statement
Page 234 PREV PAGE TOP OF DOC Hostettler, Hon. John N., a Representative in Congress from the State of Indiana: Prepared statement
Jipping, Thomas L., M.A., J.D., director, Free Congress Foundation's Center for Law & Democracy: Prepared statement
Lowey, Hon. Nita, a Representative in Congress from the State of New York: Prepared statement
Pilon, Roger, Ph.D., J.D., senior fellow and director, Center for Constitutional Studies, Cato Institute: Prepared statement
Rader, Hon. Randall R., circuit judge, U.S. Court of Appeals for the Federal Circuit, on behalf of the Federal Judges Association: Prepared statement
Stout, Charlotte Ann, Greenfield, TN: Prepared statement
(Footnote 1 return)
The Federalist No. 81 (A. Hamilton).
(Footnote 2 return)
Albert J. Beveridge, The Life of John Marshall, Vol. III, p. 177 (Boston 1919).
(Footnote 3 return)
Id. at 178.
(Footnote 4 return)
Thomas Jefferson, Letter to William Charles Jarvis, Sept. 28 1820, in Writings of Thomas Jefferson, X. 160 (Ford ed. 1899).
(Footnote 5 return)
Andrew Jackson, Veto Message, July 1832, in A Compilation of The Messages And Papers of The Presidents, 17891897, Vol. II, p. 582 (Richardson, ed.).
(Footnote 6 return)
J. Story, Commentaries on The Constitution Book III, Ch. IV, Section 379, pp. 35152 (Boston, Hilliard, Gray & Company, 1833).
(Footnote 7 return)
Id. at Book III, Ch. IV, Section 384, p. 358.
(Footnote 8 return)
Id. at Book III, Ch. IV, Section 394, p. 373.
(Footnote 9 return)
Acts of the ThirtySeventh Congress, p. 432, Sess. II. Ch. 111 (June 19, 1862).
(Footnote 10 return)
Abraham Lincoln, Inaugural Address, March 4, 1861, in A Compilation of The Messages And Papers of The Presidents, 17891897 Vol. VI, p. 9 (James D. Richardson, ed., 1891).
(Footnote 11 return)
A. Philip Randolph was the Founder and President of the Brotherhood of Sleeping Car Porters; Arnold Aronson was Program Director of the National Jewish Community Relations Advisory Council, a coalition of major Jewish organizations; and Roy Wilkins was acting Executive Secretary of the NAACP.
(Footnote 12 return)
A number of organizations in the Leadership Conference have not taken a position at this time and do not join in this statement.
(Footnote 13 return)
I have discussed the issues that follow more fully in: ''Congress, the Courts, and the Constitution,'' Cato Handbook for Congress (105th Congress), ch. 3 (esp. pp. 3642), (1997); ''A Government of Limited Powers,'' Cato Handbook for Congress (104th Congress), ch. 3 (1995) (reprinted as ''Restoring Constitutional Government,'' Cato's Letter No. 9 (1995)); ''Rethinking Judicial Restraint,'' Wall Street Journal, Feb. 1, 1991, at A10 (op-ed); ''Constitutional Visions,'' Reason, Dec. 1990, at 3941 (review of Robert Bork's The Tempting of America); ''Legislative Activism, Judicial Activism, and the Decline of Private Sovereignty,'' in Economic Liberties and the Judiciary (J. Dorn & H. Manne eds., 1987); and ''On the Foundations of Justice,'' 17 Intercollegiate Rev. 3 (1981).
(Footnote 14 return)
Lino Graglia, ''It's Not Constitutionalism, It's Judicial Activism,'' 19 Harvard Journal of Law & Public Policy, 293, 298 (Winter 1996).
(Footnote 15 return)
Robert H. Bork, Slouching Towards Gomorrah 114 (1996).
(Footnote 16 return)
''Remarks of Sen. Orrin Hatch Before the Federalist Society's 10th Anniversary Lawyers Convention,'' Senate Judiciary Committee News Release, Nov. 15, 1996, at 4.
(Footnote 17 return)
Id., at 5 (original emphasis).
(Footnote 18 return)
John Ashcroft, ''Courting Disaster: Judicial Despotism in the Age of Russell Clark,'' March 6, 1997, at 4 (MS available from the office of Senator Ashcroft).
(Footnote 19 return)
Id., at 3.
(Footnote 20 return)
Ralph Z. Hallow, ''Republicans out to impeach 'activist' jurists,'' Washington Times, March 12, 1997, at 1. See also Katharine Q. Seelye, ''House G.O.P. Begins Listing A Few Judges to Impeach,'' New York Times, Mar. 14, 1997, at A24.
(Footnote 21 return)
This very brief overview barely touches on the vast body of both scholarly and popular literature on the subject, to say nothing of political activism about judicial activism. In this last category, for example, is the Judicial Selection Monitoring Project of the conservative Free Congress Foundation's Center for Law & Democracy, which on January 27, on behalf of 260 grassroots organizations and 35 radio and television talk show hosts, petitioned President Clinton and members of the Senate to nominate and confirm only those candidates for the federal bench who are committed to judicial restraint.
(Footnote 22 return)
Michael Kelly, ''TRB from Washington: Judge Dread,'' The New Republic, Mar. 31, 1997, at 6. See also Laurie Kellman, ''Republicans rally 'round judge-impeachment idea,'' Washington Times, Mar. 13, 1997, at A1: ''The plan is aimed in part at reviving Republican morale, which has flagged this year because of Mr. Gingrich's ethics troubles and the majority's sparse floor schedule,'' at A18.
(Footnote 23 return)
See, e.g., Terry Eastland, ''Deactivate the Courts,'' The American Spectator, Mar. 1997, at 60. For a fuller treatment of why conservative efforts to influence the courts have been so unsuccessful, see James F. Simom, The Center Holds: The Power Struggle Inside the Rehnquist Court (1995). For a critique of that book, and the Court itself, see Roger Pilon, ''A Court Without a Compass,'' 40 New York Law School Law Review 999 (1996).
(Footnote 24 return)
Coalition for Economic Equity v. Wilson, 946 F. Supp. 1480 (N.D. Cal. 1996).
(Footnote 25 return)
United States v. Bayless, 913 F. Supp. 232 (S.D.N.Y.), rev'd on rehearing, 921 F. Supp. 211 (S.D.N.Y. 1996).
(Footnote 26 return)
United States v. Virginia, 116 S. Ct. 2264 (1996).
(Footnote 27 return)
Coalition for Economic Equity v. Wilson, 1997 U.S. App. LEXIS 6512 (9th Cir.).
(Footnote 28 return)
Bruce Fein, ''Judge Not,'' New York Times, May 8, 1997, at A39. Cf. Debbie Kaminer, ''Thou Shalt Not Display the Ten Commandments in Court,'' Legal Times, May 5, 1997, at 27; Terrence P. Jeffrey, ''Governor James at the Courthouse Door,'' Human Events, May 9, 1997, at 6.
(Footnote 29 return)
''To the extent that these [New Deal policies] developed, they were tortured interpretations of a document [i.e., the Constitution] intended to prevent them.'' Rexford G. Tugwell, ''A Center Report: Rewriting the Constitution,'' Center Magazine, Mar. 1968, at 18, 20.
(Footnote 30 return)
Robert H. Bork, The Tempting of America 139 (1990) (emphasis added).
(Footnote 31 return)
I have discussed these issues more fully in Roger Pilon, ''Freedom, Responsibility, and the Constitution: On Recovering Our Founding Principles,'' 68 Notre Dame Law Review 507 (1993).
(Footnote 32 return)
Thus, the Court has long been criticized by conservatives for its 1971 decision in Griggs v. Duke Power Co., 401 U.S. 424, which gave rise to the ''effects test'' in antidiscrimination law and to a host of affirmative action programs. But in interpreting the language of section 703(h) of the Civil Rights Act of 1964, which authorizes ''any professionally developed ability test'' that is not ''designed, intended, or used to discriminate because of race'' (at 433, emphasis by the Court), the Court simply drew upon the ambiguity of ''used.'' Congress could later have addressed that ambiguity, of course, but it did not. In cases like this, then, responsibility rests ultimately with Congress.