[Congressional Record Volume 143, Number 10 (Thursday, January 30, 1997)]
[Senate]
[Pages S848-S849]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           JUDICIAL ACTIVISM

  Mr. HATCH. Mr. President, I rise today to speak on a subject which I 
have frequently addressed in the past, one that is extremely important 
to me and I think to every Member of this body--in fact, to everybody 
in this country: judicial activism.
  We are witnessing today a rising tide of concern, shared not just by 
my Republican colleagues and myself, but indeed by an ever-growing 
segment of the public at large, about judicial activism and the 
prospect of filling the courts with more activists over the next 4 
years. Today, when we talk about activists, we are talking about people 
who are substituting their own personal preferences for what the law 
really is--those who choose as unelected judges appointed for life to 
make laws from the bench and to usurp the powers of the legislative and 
executive branches of this Government. They are not elected to make the 
laws, but are appointed to interpret the laws.
  Today, I would like to point out an especially egregious abuse of 
judicial power about which I have just learned. Judge Gladys Kessler, a 
Clinton appointee to the District Court for the District of Columbia--
that is the U.S. district court for the District of Columbia--took the 
truly extraordinary step, and as far as I know, a step which is 
virtually unprecedented in our Federal judicial system, and actually 
issued an order to show cause to three sitting U.S. Fourth Circuit 
judges--Fourth Circuit Court of Appeals judges, judges that are above 
her in the Federal system: Judges Karen Williams, Frances Murnaghan, 
and senior Judge Butzner. Judge Kessler in effect is seeking to force 
those appellate judges to come before her, a U.S. district court judge, 
and justify a decision that they recently handed down. Judge Kessler's 
order was personally served on Judge Williams' law clerk just 
yesterday. Let me tell you about this shocking order, dated January 3, 
1997, and issued in Civil Action No. 96-2875-GK.
  In 1972, one Restoney Robinson pled guilty in North Carolina State 
court to first-degree murder.
  He was sentenced to life in prison, and he has since been imprisoned 
in North Carolina--which is located within the Fourth Circuit Court of 
Appeals' jurisdiction. After losing all of his appeals in the State 
courts, this convicted murderer, Mr. Robinson, has apparently been 
peppering the Federal district court for the middle district of North 
Carolina with frivolous petitions and, appealing the denials of those 
petitions to the higher court, the Fourth Circuit Court of Appeals. I 
understand that Mr. Robinson has brought more than 80 such actions.
  This past October, a panel of fourth circuit judges, comprised of 
Judges Williams and Murnaghan and Senior Judge Butzner, denied 
Robinson's most recent frivolous appeal. In what can only be described 
as a truly bizarre, indeed lawless, action, Judge Kessler not only 
entertained the habeas corpus petition from Mr. Robinson, a petition 
over which she had absolutely no jurisdiction whatsoever, since Mr. 
Robinson is imprisoned in North Carolina, but had the gall to issue an 
order to those fourth circuit judges--requiring them within 30 days to 
come before her and explain to her, and to Mr. Robinson, the convicted 
murderer, why he should not be released from prison.
  Indeed, I am told that just yesterday the U.S. marshals in 
Orangeburg, SC, personally served this order on Judge Williams' law 
clerk. I have a copy of the order right here, and I ask unanimous 
consent that it be printed in the Record.
  There being no objection, the order was ordered to be printed in the 
Record, as follows:

     United States District Court for the District of Columbia

     Restoney Robinson, Petitioner vs. Murnaghan and Williams, 
         Respondent(s)

     Civil Action No. 96-287


                order directing respondent to show cause

       It is this 3rd day of January, 1997,
       ORDERED that the respondent(s), by counsel, shall within 30 
     days of service of a copy of this Order and the Petition 
     herein file with the Court and serve on petitioner a 
     statement showing why the Writ of Habeas Corpus should not 
     issue.
       The Clerk of Court is directed to furnish a copy of the 
     Petition and a certified copy of this Order to the United 
     States Marshal for the purpose of making service on the 
     respondent(s) and the U.S. Attorney's Office.
                                                   Gladys Kessler,
                                     United States District Judge.


[[Page S849]]


  Mr. HATCH. I have been critical of the activism of many of President 
Clinton's judges, and let me tell you I have read many an activist 
decision in the last few years, but I have never ever seen, nor heard 
of, a district court judge requiring circuit court of appeals judges to 
justify their decision, let alone circuit court of appeals judges from 
an altogether different circuit. In fact, we have consulted with a 
number of Federal court scholars who have told the committee that to 
their knowledge such an action is unprecedented. I should hope so.
  In short, Judge Kessler's order can only be explained as a blatant 
abuse of judicial authority and disregard for the basic structure of 
our Federal courts, or perhaps at the very least a gross oversight. But 
in any event, it is confounding and it is dumbfounding. That Judge 
Kessler apparently believes she somehow has the power to review fourth 
circuit judges' opinions is, quite frankly, nothing short of appalling 
and represents the worst short of judicial hubris.
  Perhaps Judge Kessler does not appreciate the gravity of her actions 
or perhaps she is trying to make a statement. Either way, however, her 
order is very disturbing because it represents either a fundamental 
disregard for, or ignorance of, the most basic limits on judicial 
power.
  Mr. President, when Republicans point out the activism of Clinton 
nominees, we are accused of using selective criteria. But as Clinton 
judges issue more and more activist decisions, it is becoming clear 
that a great number of them are--by any criterion--activist judges.
  Now, I have asked that the show cause order be printed in the Record. 
I hope people will read that. It is an astounding document. I do not 
know how anybody, any judge sitting for the district court, could have 
issued that kind of order. Nevertheless, it is just evidence of some of 
the things we have been going through in this country.
  Mr. D'AMATO. Will the Senator from Utah yield for a question?
  Mr. HATCH. I am happy to yield.
  Mr. D'AMATO. First, let me, if I might, say that I commend the 
Senator for taking the time to bring to the attention of the Congress 
and of the Senate such a glaring, incredible abuse of judicial 
authority. It is obvious that that is the case. But let me ask--I am 
confused as to how it is that the district court judge here in 
Washington would assert jurisdiction. What was her jurisdiction?
  Mr. HATCH. There is none. It is absolutely astounding. Here is a 
Federal district judge, trial court judge in the District of Columbia, 
who has absolutely no connection to the Fourth Circuit Court of 
Appeals, telling appellate judges that they must come before her and 
explain why this murderer's frivolous appeal was denied.
  Mr. D'AMATO. Was the crime committed here in DC?
  Mr. HATCH. No. If I understand it, the crime was in North Carolina.
  Mr. D'AMATO. So if the crime was in North Carolina, the prisoner is 
in the Carolinas, the question is total lack of jurisdiction. So the 
thing that becomes shocking is what is to prevent this judge from 
issuing or entertaining a case, let us say, from Utah where a Utah 
judge and court had ruled; she is claiming that she could ask that 
judge to come here and to explain to her why the judge made that 
decision.
  Mr. HATCH. Or from New York. If we can have judges, district court 
judges, trial court judges in the District of Columbia issue an order 
to appellate judges in the Fourth Circuit Court of Appeals, then the 
structure and rationality of our Federal judicial system would be 
thrown into disarray.
  Mr. D'AMATO. Has the Justice Department involved itself in this 
matter?
  Mr. HATCH. I do not know that they know about it, but they certainly 
are going to know about it after we finish here today, because it is 
unbelievable.

  Mr. D'AMATO. Is it the intent then of the Senator to bring this to 
the attention of the Justice Department and ask them, would it not be 
correct, to seek an order from a higher court right here to quash this? 
This is incredible.
  Mr. HATCH. We intend to let the Justice Department know, but, more 
importantly, I think, I am serving notice around here that we are not 
going to continue to sit back and tolerate these activist judges. 
Nobody has been more fair to the Clinton judicial nominations than I 
have. But many of these nominees have come in here and said we are not 
going to be activist judges; we are not going to usurp the powers of 
the executive and legislative branches of Government; we are going to 
do what judges should do, and that is interpret the laws that are made 
by those who are elected. All of them mouth that kind of language, but 
when it comes right down to it, a significant number of them are, one 
on the bench, engaging in patently activist judging and usurping powers 
that they do not have.
  So I am just serving notice that we are on to the games these 
nominees are playing, and do not intend to let this game go on. We are 
going to do what it takes to weed out those nominees who pay lip 
service to judicial restraint, but then think they can do anything they 
want to once they don their robes.
  There are limitations to the judiciary. The judiciary can preserve 
itself and keep the high opinion of the American people by not acting 
as activists, by not usurping the powers of the other two separated 
branches of Government, and by living within the limits of the Third 
Branch.
  I do not care whether activism comes from the right or whether it 
comes from the left. It is wrong, and I have never seen a more flagrant 
case of something that is wrong than this case. That is why I wanted to 
bring it to the attention of the Senate and also serve notice that we 
are going to treat the judgeship nominees over the next 4 years with 
the utmost diligence and scrutiny.
  We appoint Federal judges for a lifetime, and accordingly expect them 
to live up to the high calling of the judiciary; to appreciate the 
inherent limits on judicial power, and not to substitute their own 
policy preferences for that which the law requires.
  I hope that this sends a message to everybody, and I am serious about 
it. As one who has taken a lot of abuse from both sides on judges--
including my own Republican colleagues--I am serving notice that we do 
not intend to allow this rising tide of judicial activism to continue. 
The integrity of our judiciary, and our very right to self-government 
is at stake.
  I thank my colleague. I yield the floor.
  Mr. D'AMATO addressed the Chair.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. D'AMATO. Mr. President, I thank the chairman of the Judiciary 
Committee, Senator Hatch, for bringing to the attention of the Senate 
and to the Nation as a whole, I think, a very serious situation. 
Because this portends the kind of thing that may take place, I think 
notice has to be served by those within the court itself.
  Clearly, this case goes well beyond the realm of someone having a 
difference of legal opinion. The question of jurisdiction alone is a 
frightening one and how someone could reach well beyond and entertain a 
matter--are we going to say any Federal judge in any Federal 
jurisdiction can review matters that do not legally come before them or 
within their purview or power?
  (The remarks of Mr. D'Amato pertaining to the introduction of S. 249 
are located in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Mr. D'AMATO. I yield the floor and I thank the Chair.
  Mr. FORD addressed the Chair.
  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. FORD. Mr. President, I ask unanimous consent that I be added as a 
cosponsor of Senator D'Amato's legislation.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. FORD. Mr. President, how much time am I allotted?
  The PRESIDING OFFICER. Ten minutes.
  Mr. FORD. I will not take that long.
  (The remarks of Mr. Ford pertaining to the introduction of S. 250 are 
located in today's Record under ``Statements on Introduced Bills and 
Joint Resolutions.'')

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