[Congressional Record Volume 143, Number 42 (Thursday, April 10, 1997)]
[House]
[Page H1411]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      REGARDING JUDICIAL ACTIVISM

  The SPEAKER pro tempore (Mr. Stearns). Under a previous order of the 
House, the gentleman from Texas [Mr. DeLay] is recognized for 5 
minutes.
  Mr. DeLAY. Mr. Speaker, I rise today to discuss an issue that is of 
great concern to the American people, and that issue is judicial 
activism.
  Earlier this week, a three-judge Federal appeals court reversed a 
decision made by Judge Thelton Henderson, who barred the enforcement of 
the California civil rights initiative.
  In reversing that decision, the appellate judge wrote, and I quote, 
``A system which permits one judge to block with the stroke of his pen 
what 4,736,180 State residents voted to enact as law tests the 
integrity of our constitutional democracy.''
  That is exactly right. Judicial activism threatens the checks and 
balances written into our Constitution.
  I want to commend the gentleman from Illinois [Mr. Hyde], the 
chairman of the Committee on the Judiciary, who just yesterday 
introduced the Judicial Reform Act. Now, his legislation takes a very 
important first step in reining in the judicial branch.
  Over the last several weeks, I have been attacked by several 
different groups for suggesting that it is within the constitutional 
authority of the Congress to impeach judges who willfully ignore the 
Constitution.
  By my reading of the Constitution, it is not only the right of 
Congress to act as a check on the judicial branch; it is our duty. The 
Constitution provides that judges may be impeached for conviction of 
treason, bribery, or other high crimes and misdemeanors.
  That phrase has never been completely defined, but there is little 
doubt that the Founders intended impeachment to be used against judges 
in certain circumstances.
  The first Chief Justice of the U.S. Supreme Court, John Marshall, who 
was not in favor of judicial impeachment, nevertheless saw it as part 
of the Constitution. He said, the present doctrine seems to be that a 
judge giving a legal opinion contrary to the opinion of the legislature 
is liable to impeachment.
  Thomas Jefferson explained, the opinion which gives to the judge the 
right to decide what laws are constitutional and what not, not only for 
themselves in their own sphere of action, but for the legislature and 
executive also in their spheres, would make the judiciary a despotic 
branch.
  Justice James Wilson acknowledged that impeachment can be confined to 
political characters, to political crime and misdemeanors, and to 
political punishments.
  And even Gerald Ford explained that, when imposing the impeachment of 
Supreme Court Justice William O. Douglas, that an impeachable offense 
is whatever the majority of the House of Representatives considers it 
to be at any given moment in history.
  Now, unfortunately, on too many occasions the Federal judiciary has 
strayed far beyond its proper function. In no other democracy in the 
world do judges who are not elected, who are unaccountable, decide so 
many political issues.
  Mr. Speaker, I do not advocate impeaching judges just because I 
disagree with them politically. I advocate that Congress, using its 
clearly defined role within the Constitution, act as a check on the 
judicial branch of the Government.
  The American people are frustrated when one person, one person 
subverts their will, expressed in a democratic election. They should be 
frustrated. An independent judiciary is the anchor of our democracy. A 
despotic judiciary may very well be the downfall of our democracy.

  I urge my colleagues to consider all of the tools within our 
constitutional authority as we take on the very real problem of 
judicial despotism. One of those tools is impeachment, and, despite the 
barrage of criticism, I think it is a tool we should consider using.

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