[Congressional Record Volume 142, Number 67 (Tuesday, May 14, 1996)]
[House]
[Pages H5039-H5042]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             LIBERTY, JUSTICE, AND AN INDEPENDENT JUDICIARY

  The SPEAKER pro tempore. Under the Speaker's announced policy of May 
12, 1995, the gentlewoman from the District of Columbia [Ms.  Norton] 
is recognized for 30 minutes as the designee of the minority leader.
  Ms. NORTON. Mr. Speaker, I want to particularly thank the gentleman 
from New Jersey [Mr. Pallone] for his great kindness in yielding me 
some of his time this evening. I had wanted this time to speak on 
liberty, justice, and an independent judiciary.
  I come forward because I believe it is my obligation to do so, not as 
a lawyer, although I happen to be a lawyer, not as a law professor, 
although I am still a law professor because I continue to teach a 
seminar at Georgetown Law Center, but as a Member of Congress.
  I am moved to come forward this evening because of recent attacks on 
the judiciary. Those attacks cannot be answered by the judiciary and 
they have come from this branch. I come forward this evening to make a 
plea to my colleagues that the cynicism toward Government which has 
infected the executive branch and the legislative branch, as Americans 
regard us, stops at the courthouse door.
  Recently, from the legislative branch and the executive branch, there 
have been troubling signals that we may be willing to pull the 
judiciary into the polarized politics of the 104th Congress and the 
Presidential campaign. I agree with the dean of the Fordham University 
Law School, John Furick, who has said, and may I quote him,

       We are at a juncture where we all need to step back, 
     including our President, Congress, governor and mayor, and 
     here he means the governor and mayor of New York, and 
     consider what is at stake when we make our judiciary part of 
     the politics of the present day.

  I want to cite two cases that have drawn us into this controversy. 
They are decisions where I profoundly disagree with what results the 
courts have reached. One involves Judge Harold Baer. This is the case 
where the judge initially found that there was an unlawful search and 
seizure. He threw out the evidence because he found that the police had 
searched the car when they saw bags being loaded into the car and men 
running away. And most of us wondered what in the world the judge could 
be talking about when he said it was reasonable for black men to run 
away from the cops in this upper Manhattan neighborhood. Thank you very 
much. As a Member who represents many African Americans, I can tell you 
that we do not expect people to run away from cops upon seeing them.

  New evidence came forward, and the judge reversed himself. Before 
that happened, Mr. Dole allowed as how the judge should be impeached 
because of his initial decision while it was still pending, mind you, 
and the President stopped short of that but himself criticized the 
judge very profoundly while the matter was still pending.
  This already has had an effect upon the court. The lawyer for the 
defense himself, and I want to quote his statement, said to the judge 
in court, asking him to recuse himself, again, I am quoting,

       Never before have the President of the United States, the 
     Speaker of the House, 140 Members of Congress and a 
     Presidential candidate sat in on a case and said that a 
     Federal judge should be impeached or resign.

  The defense lawyer then called upon Judge Baer to recuse himself 
entirely from the case saying, and I am quoting,

       It would appear you may have been influenced by outside 
     forces.

  Thus, when the judge heard new evidence, heard evidence that 
corroborated the initial evidence of the policemen involved, the 
defense lawyer said, there is still the appearance of impropriety and 
you should recuse yourself. I am not sure that the judge can ever get 
that stain off of himself, although it is clear that there was enough 
evidence before, frankly, and certainly afterward.
  There is a second case from New York where I also disagree with the 
judge. That was one in which Governor Pataki, himself a lawyer, I 
believe also Mayor Giuliani called for the removal of a criminal court 
judge. His name was Lauren Duckman. Judge Duckman had lowered the bail 
of a suspect allowing the suspect to get out of prison and the suspect 
proceeded to kill his former girlfriend and it was harassment of his 
former girlfriend that got him in jail in the first place.
  I do not think I need to tell anybody who knows me in this body where 
I stand on that case. The governor said that if the State commission 
did not remove this judge within 60 days, then he would ask the State 
Senate to begin removal proceedings.
  Judges are often attacked and as public officials should be open to 
caustic attack, but I can tell you, Mr. Speaker, I have seldom, if 
ever, seen these kinds of attacks come from the top of the Government.
  I am here this evening to say, stop it. Stop it. This is an attack 
upon our system of Government. It is difficult for judges to respond.
  To his credit, from the top of the judiciary, the Chief Judge, the 
Chief Justice, Mr. Rehnquist, has in his own way responded, in a speech 
at the American University Law School. He responded in very lawyer-like 
fashion, referring to precedent, particularly the impeachment in 1805 
of Justice Samuel Chase because of the way he handled three cases. The 
Senate, however, refused to convict and convictions must take place in 
the Senate.
  Mr. Rehnquist noted the precedent and its viability for more than 200 
years, for almost 200 years, and indicated he thought that precedent 
should stand. He also cited the infamous case of President Franklin 
Roosevelt who attempted but failed to pack the Supreme Court with extra 
justices when he thought, frankly, that the Republic was going to fall 
because the New Deal programs designed to save us from a catastrophic 
depression were put in jeopardy by the response of the judiciary. Even 
given the seriousness of those cases and the seriousness of the Baer 
case and the Duckman case which I have just alluded to, there is no 
case so serious that it is worth the attacks we have recently seen. I 
believe Mr.

[[Page H5040]]

Dole has pulled back. I believe President Clinton has pulled back. I am 
here to say, let us all pull back.

  Judges must be subject to the same kind of criticism that other 
public servants are, except that restraint is necessary because, unlike 
the executive and unlike the legislature, the courts must be entirely 
independent, free from outside influence. And that depends upon the way 
we, especially we in public office, behave.
  Justice Breyer was in Russia in 1992 and sat in on a meeting between 
President Yeltsin and 500 Russian judges. And the justices reports that 
Mr. Yeltsin said to the 500 Russian justices, there are going to be 
changes made in the judiciary in Russia. For one thing, the prosecutor 
is not always going to win.
  The prosecutor always wins; indeed, the parliament always wins in 
totalitarian regimes. I do not speak as Justice Rehnquist did as a 
judge. I have no desire to be a judge. I speak as a legislator. 
Understanding that the Judiciary is dependent upon the self-imposed 
restraint that this body and the Executive has almost always exercised 
for more than 200 years, the system demands restraint by us. Otherwise 
the judiciary itself is undermined, but, much more importantly, our 
Democratic form of government is undermined.

                              {time}  2215

  That is exactly what Alexander Hamilton said in a terse, but 
piercing, statement, and I quote Hamilton:

       There is no liberty, he said, if the power of judging be 
     not separated from the legislative and executive power.

  Are we going to go back to Henry VII, when it is said he ruled his 
law with his judges?
  We can have very little to do with judges except insofar as the 
President and the Senate participate in their appointment.
  One commentator recently has written that the recent controversy 
about these cases, and I am quoting, should have dispelled any 
lingering doubt that the Judiciary and the nominating process for 
judges are destined to be entangled in partisan politics this election 
year possibly in a way not seen before, end quote.
  Oh no, let us not pierce the separation of powers during the 104th 
Congress. We have polarized the country and this body enough. We push 
the envelope way too far when we draw judges and courts into our 
partisan disputes.
  It is fair game to criticize decisions, it is fair game to criticize 
judges. It takes judgment to know when to stop. It takes discipline in 
this body and in the Executive to know when to stop.
  This is a part of our history that is most revered. It begins before 
our forbears came to these shores. It took hundreds of years in England 
for the parliament to wrest its own superiority from the king. That was 
the beginning of English democracy. But the judges were still 
subservient to the parliament, so the parliament got greater democracy 
by pulling power from the monarch, but had no intention whatsoever of 
creating an independent judiciary initially. It took those who framed 
our Constitution to truly develop the notion of an independent, totally 
untainted, totally nonpartisan judiciary.
  The Founders therefore took the British legacy, which included 
parliamentary supremacy, several steps further. The British had no 
written constitution. The Framers insisted upon a written constitution. 
But in order for the Constitution to matter, to guard the new Nation 
and its processes and its citizens, somebody had to be in charge of 
interpreting it. That was the role of an independent judiciary, and in 
order to make sure that liberty was guarded, nobody could tamper with 
the judges whose job it was to interpret the Constitution and the 
rights that flow from it.

  So, as one commentator has said, if, meaning if the judges, were not 
entirely independent, and I am quoting, the Constitution's promise of a 
government of limited powers could be broken with utter impunity. The 
Founders thus rendered Federal jusges independent of the political 
departments not only with respect to their tenure and salary, but, more 
importantly, in their source of judicial authority.
  It is this additional step, inconceivable in England, that made the 
American Constitution truly revolutionary. Without the judges there 
untouched and untouchable, the whole thing known as American democracy, 
the whole thing known as our former government, collapses in your laps. 
What has kept if from collapsing thus far? Amazingly, self-restraint. 
Self-restraint in this body and in the other body, self-restraint of 
the Executive; that is all that has done it. That is what separates us 
from the juntas and the banana republics and the totalitarian regimes.
  Separation of powers is not a cliche, but it is a very ambiguous 
concept. What in the world does separation of powers truly mean? When 
you consider the supremacy of the legislature in our form of 
government, what separation of powers means is certainly not absolute. 
We, or the Senate, confirms judges. The President appoints judges, so 
clearly they do not spring from somebody's forehead. They are, in fact, 
touched by us initially. At the other end they can be removed only by 
impeachment, and we cannot reduce their compensation.
  One writer has said that there is a twilight zone in between. You can 
appoint them, you can confirm them, and you can remove them for high 
crimes and misdemeanors, which is why Mr. Dole's comment was totally 
out of order, because whatever these judges had done did not amount to 
high crime, it amounted to a wrong decision.
  If you can bring them in, and you can put them out with lots of 
safeguards attached to both ends, what can you do in between, the so-
called twilight zone? A lot, and not very much. Public servants, 
whether they serve on the bench in the executive or in the Congress, 
are subject to public criticism and public scrutiny. But we are all 
different. We are different from the Executive, we are different from 
the judiciary. But the Executive and the legislature are much more 
alike than the judiciary is like either of us.
  This is not a civic lesson, my colleagues. This is a warning from one 
of your Members. It is up to us to raise this point. It is up to us to 
signal that we do not mean to cross over the line to pierce the wall of 
separation of powers. That is not our intent, I do not believe it is 
the intent of any Member of this body, I do not believe it is the 
indent of the President of the United States, but I do believe that in 
the heat of argument it is very easy to do. Step back, step back.
  The courts have been utterly principled on the separation of powers. 
The courts have defended our separate power. The courts have 
consistently, using the speech and debate clause, prevented any 
interference with out deliberations and have given the most liberal 
interpretation to the speech and debate clause, coining even the 
principle of legislative independence.

  Each branch is coequal, but we are very different, and those 
differences must be respected or the 104th Congress will go down not 
only as the most calamitous, boisterous, raucous Congress, but as a 
Congress that lost respect for our form of government and helped to 
bring shame upon it. That is not the intent of any Member of this body.
  I go very far and thought I should leave you with some examples of 
just how far I go when it comes to allowing, indeed encouraging, 
criticism of the judiciary. On March 18, 1986, Senator Charles 
Grassley, a Republican of Iowa, mailed a questionnaire to article 3 
judges, and it makes some of them very uncomfortable; does not make me 
uncomfortable. Lots of controversy about it. He asked them about their 
workloads, he asked them to fill out a questionnaire. These are sitting 
judges, they are article 3 judges. Everybody got it except the Supreme 
Court Justices. They were supposed to talk about their workloads, the 
use of law clerks and their outside teaching activities, their travel 
to conferences. I found most of it pretty mundane. What had not 
happened before is a sitting Member sending a questionnaire to judges.
  Look, we get the money, we appropriate money. I do not know we cannot 
know something about the way in which courts operate. Some of the 
questions might have made some people uncomfortable; for example 
including does your court have a procedure for certifying opinions for 
publication? Or a motion of a party? Some have suggested that court 
policies regarding the

[[Page H5041]]

publication of opinion and withdrawal of published opinions foster a 
number of problems, including an unfairness to litigants, a loss of 
judicial accountability and uncertainty about Presidential status and 
actual judicial economy. What is your view of these suggestions? Are 
you involved in extracurricular activities such as teaching, lecturing, 
writing law review articles and making public opinions? If so, how much 
time do you spend on these activities, including preparation and 
travel?
  Some people would say, hey, it is an independent judiciary. You are 
in the Congress. When you ask them questions, people may think you are 
trying to intimidate them. I do not think so. I think that if we are 
appropriating article 3 courts every year that we have a right to know 
something about their activities.
  I leave a very large space for criticism and inquiry.
  Mr. Dole and Mr. Clinton have had an exchange. Mr. Dole has 
criticized the ABA. I profoundly disagree with that. Just because you 
do not like the fact that some liberal judges have escaped, have gotten 
through, the scrutiny of the ABA because all this was a dupe, frankly, 
is to tell us about competence. I do not know why you want to throw the 
ABA out because it does not stop judges at the courthouse door if they 
happen not to meet your ideological tests. Nevertheless, Mr. Dole has 
made an issue of the ABA. He has also made an issue of President 
Clinton's nominees. He has said that, and he used their caustic 
language, that it was a bunch of liberal judges and that they disregard 
the law, and he said some pretty excoriating things.

                              {time}  2230

  ``A startling number of Mr. Clinton's lower court appointees have 
demonstrated an outright hostility to law enforcement.''
  Fair criticism. I do not agree with it, but fair criticism. In 
return, Mr. Clinton has said that 67 of his appointees have received 
the highest rating of the ABA, compared to 52 percent of George Bush's 
nominees, 53 percent of Ronald Reagan's, and 57 percent of Jimmy 
Carter's; so he says, ``Look, this is all about qualifications. So far 
my judges are the highest qualified. That is all you can look at.'' 
Moreover, he said Mr. Dole voted for 182 out of 185 of his nominees.
  Mr. Dole responds, ``Hey, I voted for them because of your 
prerogative. You cannot pin those judges on me.'' They can go back and 
forth like this during the entire presidential campaign and not offend 
me at all, not offend the separation of powers, not offend an 
independent judiciary. But when you call for impeachment of a judge, 
you send a chill through every judge in the United States. When you say 
you had better start impeachment proceedings, you who are an 
independent commission, or we the Governor, or we the legislature are 
going to do it, you send a chill. Neither of those chills is deserved. 
Both of those chills the entire system of government that is the United 
States.
  Mr. Speaker, judges are controversial for a very important reason. 
That is because, as de Tocqueville said, ``Hardly any question arises 
in the United States that is not resolved sooner or later in a judicial 
question.'' If that was true in the 19th century, imagine how much more 
true it is today. Yes, this is a high stakes game. Yes, judges in our 
system of government have much more power than judges generally have. 
But yes, we can tolerate it. We know where to stop. We love this 
system, and the last thing any Member wants to do is to destroy it.
  The principle of separation of powers, of an independent judiciary, 
of limited government, and of constitutional government are more 
important than Judge Baer's decision in the New York City case, are 
more important than Judge Duckman's decision in the case of the woman 
who was murdered. Yes, judges are human and they will make mistakes, 
and some of them will be profound, and some others of them will be 
outrageous. But we will not throw away 200 years of a magnificent 
constitutional system because two judges make a mistake. We will not do 
this. This Member comes to the floor to announce that she believes she 
is speaking for Members of the House and Senate and the President of 
the United States when she says we will not do this.
  We will carry on the 1996 campaign with a lot more vigor and 
raunchiness than I would like, but it is going to happen. It is going 
to be a nasty, ugly campaign. So be it. That can happen between the two 
branches, and in a Presidential campaign. I do not like it. There is 
nothing illegal about it. There is nothing about it that risks our 
system of government. If we must punch each other out, as we have all 
during the 104th Congress, so be it. I ask my colleagues only one 
thing: As we go at one another, just leave the judges and the courts 
out of it.
  Mr. Speaker, I yield to the gentleman from New Jersey [Mr. Pallone].
  Mr. PALLONE. If I could, Mr. Speaker, I will sum up a statement on 
the arms transfer to Pakistan and the United States response to Chinese 
nuclear transports. This is with regard to events taking place over the 
weekend.
  I wanted to express my strong concern about these two recent 
developments that will affect the proliferation of nuclear and 
conventional arms in the South Asia region. First, after months of 
negotiations, it was announced last Friday that the United States will 
not punish the People's Republic of China for its sale to Pakistan of 
5,000 ring magnets, devices used for the production of weapons-grade 
enriched uranium, in direct violation of provisions of the 
nonproliferation Act.
  The official rationale for taking no action against the Chinese was 
that Beijing had committed itself not to make any such transfers in the 
future and that the Chinese would help us to stop the spread of nuclear 
weapons and consult with us on export control policies.
  Secretary of State Christopher indicated that the United States had 
no hard evidence to counter China's denials of any knowledge of the 
transfers to Pakistan, even though there is strong evidence that the 
particular Chinese companies that sold the ring magnets have in fact 
been identified.
  Mr. Speaker, I rise to express my strong concern about two recent 
developments that will affect the proliferation of nuclear and 
conventional arms in the South Asia region.
  First, after months of negotiations, it was announced last Friday 
that the United States will not punish the People's Republic of China 
for its sale to Pakistan of 5,000 ring magnets, devices used for the 
production of weapons-grade enriched uranium--in direct violation of 
provisions of the Non-Proliferation Act. The official rationale for 
taking no action against the Chinese was that Beijing had committed 
itself not to make any such transfers in the future, and that the 
Chinese would help us to stop the spread of nuclear weapons and consult 
with us on export control policies. Secretary of State Christopher 
indicated that the United States had no hard evidence to counter 
China's denials of any knowledge of the transfers to Pakistan--even 
though there is strong evidence that the particular Chinese companies 
that sold the ring magnets have, in fact, been identified.
  Interestingly, in last Saturday's New York Times, accompanying the 
article about the decision not to sanction China for the nuclear 
equipment transfers, was an article entitled ``Tread Carefully With 
China, Business Leaders Urge U.S.'' Leaders of the Business Council, 
meeting with government officials in Williamsburg, VA, urged that 
differences with China over not only nuclear proliferation, but also a 
wide range of human rights concerns and piracy of American music, 
movies, and software, should not get in the way of our economic 
relationship with China.
  Now, in today's Washington Post we read that there may have been even 
less to the Chinese pledge of cooperation than initially met the eye. 
In the official Chinese statement, there was no specific reference to 
future sales of ring magnets, nor was there any specific pledge that 
sales of similar, nuclear-related gear to would-be nuclear 
proliferators would not recur. In a clever bit of diplomatic slight of 
hand, our diplomats essentially said that they thought the Chinese 
meant to make these promises, and as long as the Chinese didn't 
publicly contradict our statement, it would look like we had a deal. I 
fear that we got nothing more than another empty promise from the 
Chinese leadership.
  Mr. Speaker, I recognize that this administration has sought to 
expand American trade and investment in the emerging markets of the 
world, and there is much that is positive about this strategy. But, 
when it comes to China, I believe we had to draw a line--particularly 
with regard to this reckless Chinese policy of assisting the nuclear 
weapons development program of Pakistan, a country that has repeatedly 
shown itself to be unstable, a country that has trained and financed 
terrorist movements, a country that has openly shown itself

[[Page H5042]]

to be hostile to United States and Western interests.
  Sadly, it appears that the Clinton administration is pursuing the 
same policy as the Bush administration pursued with regard to China, 
arguing that increased business links would help modify Chinese 
behavior. This policy has essentially forced us to sweep one outrage 
after another under the rug, with the nuclear proliferation issue being 
only the latest in a series of outrages.
  Mr. Speaker, in another issue that could have lasting effects on 
security in the strategically important South Asia region, I regret to 
point out that the administration is also going forward with the 
shipment of $368 million worth of sophisticated conventional arms to 
Pakistan. Plans call for shipping the weapons to Pakistan after the 
completion of the elections in India--the logic being, apparently, to 
avoid making the arms transfer an issue in the elections, despite the 
fact that it has been widely known for weeks that the shipment would 
happen. This ill-advised proposal that will only contribute to 
instability and weapons proliferation in the region.

  A provision in the fiscal year 1996 foreign operations appropriations 
authorizes the transfer of $368 million in sophisticated conventional 
weaponry, including three Navy P-3C antisubmarine aircraft, 28 Harpoon 
missiles, 360 AIM-9L missiles, and other Army and Air Force equipment. 
This provision, known as the Brown amendment, after its Senate sponsor, 
passed the Senate last year. Although the provision was never debated 
in the House, it carried in conference. I drafted a letter to the 
conferees, which was signed by 40 other Members from both sides of the 
aisle urging that this provision not be included in the bill. But, 
owing in large part to the support of the administration and the 
influence of the pro-Pakistan lobby, the provision was included in the 
bill and became law.
  As far back as last summer, many of us in Congress--Democrats and 
Republicans, Members of both bodies--argued that providing these 
weapons to Pakistan was a bad idea, given Pakistani behavior. About a 
year ago, it was reported that Pakistan received Chinese M-11 missiles, 
in direct violation of the Missile Technology Control Regime. These 
missiles, in direct violation of the Missile Technology Control Regime. 
These missiles are capable of carrying nuclear warheads, and can strike 
cities within a 275-mile radius. It was also reported last year that 
Pakistan developed its nuclear weapons from a blueprint provided by the 
PRC, and Pakistan then gave this blueprint to Iran. Pakistan remains an 
unstable nation, where the military does not seem to be under strong 
civilian control, a country which supports the embargo of Israel and 
does not recognize the State of Israel.
  Yet here we are, Mr. Speaker, forgiving the outrageous behavior of 
both Pakistan and China.
  It is important to recognize that Pakistan has not agreed to do 
anything in exchange for the release of the arms--the shipment of which 
was seized pursuant to the Pressler amendment. Named for its Senate 
sponsor, the Pressler amendment, mandates an annual Presidential 
certification that Pakistan does not possess a nuclear explosive 
device. If such a certification cannot be made, under the law, all 
United States military assistance to Pakistan must be ended--including 
weapons already paid for but not delivered. In 1993, President Clinton 
did offer to return all or some of the weapons in the pipeline if 
Pakistan would agree to cap its nuclear program. Pakistan rejected this 
offer. In fact, by receiving the ring magnets from China, Pakistan was 
continuing to act--in defiance of the United States--to further its 
nuclear ambitions.
  Finally, the administration came up with a compromise: while 28 F-16 
fighter jets would not be delivered to Pakistan--they already have 40 
F-16's--the $368 million worth of military equipment would be delivered 
with no strings attached.
  Thus, Mr. Speaker, Pakistan gets its weapons--our weapons--and we 
receive nothing in return.
  Mr. Speaker, the delivery of these weapons to Pakistan will be seen 
by India as a slap in the face. India, the world's second most populous 
country, is in the process of completing the largest exercise in 
democracy in world history. India's elections, despite a few isolated 
incidents of violence, were conducted very smoothly. While the 
implications of the election results are somewhat unclear, what is 
clear is that this election represents the free expression of hundreds 
of millions of citizens in a vast, diverse, and free nation. Contrast 
these democratic elections with the dictatorship in China. Contrast the 
ability of hundreds of millions of people to express their views 
without fear of reprisals with the ongoing atmosphere of political 
violence that continues to tear Pakistan apart.
  In addition to sharing our democratic values, India has also been 
pursuing a historic free-market economic reform. In fact, the United 
States has in the past few years become India's largest trading 
partner.
  Mr. Speaker, I urge the administration to end this tilt toward 
Pakistan and China. We must work to promote not only free markets, 
which are an extremely important consideration, but also democracy. 
Based on these criteria, we should be working for improved relations 
with India.

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