[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.
____________________