[Congressional Record Volume 142, Number 46 (Friday, March 29, 1996)]
[Senate]
[Pages S3235-S3236]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     CONFIRMATION OF FEDERAL JUDGES

  Mr. LEAHY. Mr. President, I take our advice and consent function very 
seriously and especially so when it comes to the confirmation of 
Federal judges who are given lifetime appointments. In our system of 
Government, with coordinate branches and separation of powers, that is 
our responsibility in the Senate. But once a Federal judge is 
confirmed, our role is concluded.
  I have voted to confirm some judges who rendered decisions with which 
I strongly disagreed and have voted against a few who have surprised me 
by turning out to be better judges than I predicted. Whenever I 
disagreed with a particular ruling in a particular case, after a 
Federal judge was nominated, examined and confirmed, I have not 
attacked that judge or tried to influence that judge's consideration of 
an ongoing matter.
  If we disagree with the result in a case, we can determine whether 
the law needs to be amended or new law needs to be enacted. If a judge 
decides a case incorrectly, the remedy in our system is through 
judicial appeal. Indeed, the reason the Founders included the 
protections of a lifetime appointment for Federal judges was to 
insulate them from politics and political influence.
  I ask that a statement from a group of distinguished judges from the 
U.S. Court of Appeals from the Second Circuit and an editorial from the 
Washington Post on this subject be made part of the Record.
  The material follows:

                            Joint Statement

       The following is a joint statement of Jon O. Newman, J. 
     Edward Lumbard, Wilfred Feinberg, and James L. Oakes, who are 
     respectively, the current and former chief judges of the 
     United States Court of Appeals for the Second Circuit:
       The recent attacks on a trial judge of our Circuit have 
     gone too far. They threaten to weaken the constitutional 
     structure of this Nation, which has well served our citizens 
     for more than 200 years.
       Last Friday, the White House press secretary announced that 
     the President would await the judge's decision on a pending 
     motion to reconsider a prior ruling before deciding whether 
     to call for the judge's resignation. The plain implication is 
     that the judge should resign if his decision is contrary to 
     the President's preference. That attack is an extraordinary 
     intimidation.
       Last Saturday, the Senator Majority leader escalated the 
     attack by stating that if the judge does not resign, he 
     should be impeached. The Constitution limits impeachment to 
     those who have committed ``high crimes and misdemeanors.'' A 
     ruling in a contested case cannot remotely be considered a 
     ground for impeachment.
       These attacks do a grave disservice to the principle of an 
     independent judiciary, and, more significantly, mislead the 
     public as to the role of judges in a constitutional 
     democracy.
       The Framers of our Constitution gave federal judges life 
     tenure, after nomination by the President and confirmation by 
     the Senate. They did not provide for resignation or 
     impeachment whenever a judge makes a decision with which 
     elected officials disagree.
       Judges are called upon to make hundreds of decisions 
     each year. These decisions are made after consideration of 
     opposing contentions, both of which are often based on 
     reasonable interpretations of the laws of the United 
     States and the Constitution. Most rulings are subject to 
     appeal, as is the one that has occasioned these attacks.
       When a judge is threatened with a call for resignation or 
     impeachment because of disagreement with a ruling, the entire 
     process of orderly resolution of legal disputes is 
     undermined.
       We have no quarrel with criticism of any decision rendered 
     by any judge. Informed comment and disagreement from lawyers, 
     academics, and public officials have been hallmarks of the 
     American legal tradition.
       But there is an important line between legitimate criticism 
     of a decision and illegitimate attack upon a judge. Criticism 
     of a decision can illuminate issues and sometimes point the 
     way toward better decisions. Attacks on a judge risk 
     inhibition of all judges as they conscientiously endeavor to 
     discharge their constitutional responsibilities.
       In most circumstances, we would be constrained from making 
     this statement by the Code of Conduct for United States 
     Judges, which precludes public comment about a pending case. 
     However, the Code also places on judges an affirmative duty 
     to uphold the integrity and independence of the judiciary. In 
     this instance, we believe our duty under this latter 
     provision overrides whatever indirect comment on a pending 
     case might be inferred from this statement (and we intend 
     none).
       We urge reconsideration of this rhetoric. We do so not 
     because we doubt the courage of the federal judges of this 
     Circuit, or of this Nation. They have endured attacks, both 
     verbal and physical, and they have established a tradition of 
     judicial independence and faithful regard for the 
     Constitution that is the envy of the world. We are confident 
     they will remain steadfast to that tradition.
       Rather, we urge that attacks on a judge of our Circuit 
     cease because of the disservice they do to the Constitution 
     and the danger they create of seriously misleading the 
     American public as to the proper functioning of the federal 
     judiciary.
       Each of us has important responsibilities in a 
     constitutional democracy. All of the judges of this Circuit 
     will continue to discharge theirs. We implore the leaders of 
     the Executive and Legislative Branches to abide by theirs.
                                                                    ____


               [From the Washington Post, Mar. 26, 1996]

                        Life Tenure for a Reason

       In an angry and misguided response to an unpopular judicial 
     ruling in New York last month, the White House let it be 
     known that it was considering asking for the resignation of 
     the federal judge in question. Within days of this thinly 
     veiled and constitutionally empty threat, however, cooler 
     heads prevailed. In a letter to a member of Congress who had 
     called for resignation, the president's counsel, Jack Quinn, 
     took the right tack, declaring that ``the proper way for the 
     executive branch to contest judicial decisions with which it 
     disagrees is to challenge them in the courts, exactly as the 
     Clinton administration is doing in this case.''
       At issue is a decision by Judge Harold Baer, a Clinton 
     appointee, to suppress evidence in a multimillion-dollar drug 
     case because the police did not, in his opinion, have 
     probable cause to stop and search the car being used to 
     transport the drugs. Such a ruling is always unpopular, 
     especially in a case like this, in which a defendant at risk 
     of a life sentence will go free if the evidence is 
     inadmissible. But Judge Baer unfortunately used this 
     opportunity to take a gratuitous swipe at the police. It was 
     reasonable, he wrote, for the men involved in this crime to 
     run from the police, because in their neighborhood officers 
     have a reputation for corruption and violence.
       The public uproar has caused Judge Baer to reconsider his 
     ruling. But whether he is correct on the law is of secondary 
     interest. Because this evidence is crucial to the case, the 
     government can appeal an adverse decision and get a ruling 
     from a higher court before the trial proceeds.
       What is notable about the case is the eagerness of elected 
     officials to demand the ouster of the judge, not because of 
     corruption but because they did not agree with his ruling in 
     one case. It is exactly this kind of situation that the 
     Framers of the Constitution sought to avoid by providing life 
     tenure

[[Page S3236]]

     for judges. Because of their wisdom, a judge acting in good 
     faith who makes an unpopular call--protecting the free speech 
     of political dissenters, for example--cannot be removed from 
     office. The president, members of Congress and the public in 
     general can demand his resignation until they are blue in the 
     face, but a judge cannot be personally punished for taking an 
     unpopular position. He can be removed only by impeachment.
       An election-year assault on the judiciary is already in 
     full swing. There will be the expected claims that one side 
     will pack the courts with turn-'em-loose liberals and the 
     other will nominate only right-to-life stalwarts. Fortunately 
     for the country, judicial officers are sufficiently insulated 
     from the political process that they are able to do the right 
     thing even when the majority objects. Their mistakes can be 
     reversed. Their independence from political pressure must be 
     preserved.

                          ____________________