[Congressional Record Volume 143, Number 45 (Wednesday, April 16, 1997)]
[House]
[Pages H1588-H1591]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
JUDICIAL ACTIVISM
The SPEAKER pro tempore. Under the Speaker's announced policy of
January 7, 1997, the gentleman from Texas, Mr. Sam Johnson, is
recognized for the remainder of the time as the designee of the
majority leader.
Mr. SAM JOHNSON of Texas. Mr. Speaker, I appreciate the position of
the other gentleman from Texas, Mr. Delay. I come before the House
today to talk about a problem that the gentleman has already laid out
there, but it is quietly and steadily eating away at our constitutional
system of government.
Judicial activism is not only compromising our long-held tradition of
separation of powers, but throughout our academic and legal community
they are pushing the judiciary to be activists in their decisions, so
much so that any attempt by Congress to address this issue is
immediately met with accusations of political sabotage and
constitutional breach.
Mr. Speaker, I want to assure my colleagues that we in the Congress
are not trying to undermine the Constitution. Far from it. We are
trying to enforce it, to open the issue to public scrutiny and return
the role of the Federal judiciary back to our Nation's intended belief,
what our Nation's founders had always intended: That the third branch
of the Government, the judiciary, is to be the weakest branch of
government.
In The Federalist papers, number 78, Alexander Hamilton, for example,
wrote that the judicial branch, quote,
Will be always the least dangerous to the political rights
of the Constitution, and that it may truly be said to have
neither the force nor will but merely judgment.
The judiciary was intended to interpret the law, not to create it.
But that is exactly what we are seeing in some of our courts today.
They are not ruling on the law, they are creating the law.
Unelected Federal judges are furthering their own personal and
political views by legislating from the bench and ignoring the will of
the people of the United States. In fact, it has gotten so bad that
judges are even overturning elections of our elected people.
David Barton, in his book, ``Impeachment: Restraining an Overactive
Judiciary,'' said it best when he wrote that
It has gotten to the point that any special interest group
that loses at the ballot box only has to file a suit in
Federal court to declare itself the winner.
And most of the time our judges are ruling with them.
If we just look at the recent instances of judicial activism, we will
see some of the expansion of power that Federal judges are trying to
achieve. I say some Federal judges, not all of
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them. We have seen judges overturn cases based on the weakest of
circumstances simply to further their own political views.
Judge Nixon, in Tennessee, a known opponent of capital punishment,
has repeatedly issued rulings overturning cases where the criminal was
sentenced to death.
More recently, I am sure everyone has heard of Judge Baer in New
York, who overturned a drug conviction on a technicality even though
the defendant admitted his guilt to the police.
In addition to these reversals, other Federal judges have taken it
upon themselves to legislate from the bench, issuing far-reaching
orders to impose their own set of political views on the American
people. One of those famous cases involves Judge Russell Clark, who
ruled in 1987 in Kansas City, MO, that the school system was
segregated, and he issued a court order that called for a tax increase
and forced the people of that State to pay for his desegregation
scheme.
Well, $2 billion in taxpayer dollars later, the Kansas City school
system is no better off, and he is probably backing up on that. Judge
Clark's agenda included such things as animation labs, greenhouses,
temperature-controlled art galleries, and a model United Nations wired
for language translation. I am not sure I know what that has to do with
segregation.
Closer to home for me, I spent quite a bit of time when I was in the
Texas statehouse following the antics of Judge William Wayne Justice,
whose rulings on our prison system in Texas forced us to allow
prisoners to get out before their time was up, giving them a lot of
good time, one; and, two, putting them in bigger rooms. In other words,
where we had four beds, we could only put two; where we had two beds,
we could only put one. And every man had to have his own color
television set in prison. What a waste of taxpayer dollars addressing
frivolous inmate lawsuits.
Also back home we are seeing another judicial activist arise in the
form of Judge Fred Biery, who on January 24 of this year issued an
injunction which prevented two duly elected officials in Val Verde
County from taking office. Why? Because he would not allow 800 absentee
military votes to be counted.
I consider this to be an affront to the rights of the military. As a
matter of fact, after serving in the military for 29 years and being
all over this Nation, I would say that it is important that we make
sure that our military is allowed to vote, especially while they are
defending the Nation.
It is a dangerous precedent where one judge can decide he just does
not like the results of the election and simply overrules the results.
One final example, and perhaps the most newsworthy, is the decision
by Judge Henderson in California, who issued an injunction stopping the
implementation of proposition 209 in California, which would ban racial
quotas in California and which passed with 54 percent of the vote of
the State.
Not many people know that that particular judge, Judge Henderson, had
once served on the board of the American Civil Liberties Union of
California, an organization which took an active interest against
proposition 209, and here he is ruling with his own special interest
group against the people of California who with more than 4,700,000
State residents voted to enact as law proposition 209.
I think that tests the integrity of our constitutional democracy, and
I think that the three-judge panel which had the courage to remind
their colleagues of the judiciary's rightful place in our
constitutional democracy and overrule that ought to be commended.
We cannot always count on Federal judges to keep their colleagues in
check, and that is why I feel like Congress must exercise our duty to
ensure that the third branch of the Government does not exceed its
authority.
Mr. SCARBOROUGH. Mr. Speaker, will the gentleman yield?
Mr. SAM JOHNSON of Texas. I yield to the gentleman from Florida.
Mr. SCARBOROUGH. Mr. Speaker, I can tell the gentleman that I have
similar concerns, even though I recognize, like the gentleman does,
that the overwhelming majority of the Federal judges that serve in this
country do an honorable job.
Back in my area, I have long admired Judge Stafford and Judge Vincent
and Judge Collier and Judge Novotany, and all those that have done a
great job. But there are, we have to admit, in any profession, some
renegades that do violence to the integrity of the system, to the
Constitution, and I guess that is what has concerned me the most.
As conservatives and others concerned with judicial activism have
come out and started asking some tough questions, we have heard
everybody come out and start squealing and talking about how to even
look at the system is somehow a threat to democracy. In my
understanding of democracy, my understanding of our Constitution, my
understanding of 2,500 years of Western civilization style democracy,
more a threat to democracy than asking questions in the free
marketplace of an idea would be a single judge with a single stroke of
the pen being able to erase the popular will of 5 million California
residents. That is an outrage.
Mr. SAM JOHNSON of Texas. Well, Mr. Speaker, reclaiming my time, I
would ask the gentleman, does he think that the Congress, I mean our
country's founders, when they wrote our Constitution, they were pretty
smart fellas, and they said, OK, we will appoint these judges for life,
but we will give the Congress a method to rein them in if they get out
of hand. And that rein-in, I think, is what the gentleman from Texas
[Mr. DeLay] was alluding to earlier, that the Congress has the sole
discretion to impeach when they get out of line.
Mr. SCARBOROUGH. If the gentleman would continue to yield, we
certainly do have the opportunity to supervise what is happening in the
judiciary; obviously, allowing them the independence they were afforded
in the Constitution, and recognizing that the genius of our system is
the fact we do have separation of powers.
The gentleman read from Alexander Hamilton's Federalist paper number
78. Number 81 is equally instructive, where Alexander Hamilton argued
that,
The supposed danger of judiciary encroachments of the
legislative authority is in reality a phantom, because there
never can be danger that judges, by a series of deliberate
usurpations on the authority of the legislature, would hazard
the united resentment of the body entrusted with the power of
impeachment.
To paraphrase, Hamilton is saying that the judges would never be so
brazen as to ignore their constitutional mandate for the people in this
legislative body. The legislative branch of government was given the
power to rein in the judiciary if the judiciary did violence to the
Constitution by actions that were highly inappropriate.
{time} 1600
There can be no debate among any reasonable man or woman that
understands the constitutional history of this country that our
Founding Fathers never anticipated a single judge, a single lower court
Federal judge being able to eradicate with one signature the popular
will of 5 million American citizens. It does violence to the very
concepts that they fought for in the Revolutionary War.
Mr. SAM JOHNSON of Texas. Let me quote from the Federalist Papers
again, from Hamilton, in No. 78. He also says, which follows what the
gentleman said, ``It may truly be said that no judge shall have either
force nor will but merely judgment.''
If the gentleman recalls back in the 1800's, they even talked about
impeaching judges, Federal judges because they cussed in court.
Mr. SCARBOROUGH. If the gentleman will yield further, let me just
say, there are some people that are talking about different forms of
reining in the Federal judiciary. I know that the whip has been talking
about certain things. I would like to see us do it in a calm, rational
manner. I think it is time for us to come together as a country and as
a legislative body and reexamine the realities of the judiciary in the
late 20th century and recognize that things have moved in a certain
direction, a bit away from what our Founding Fathers anticipated, and
get Congress to start looking into the issue of judicial activism,
which we have heard hues and cries about for many years now, and just
see if judicial activism really does pose the type of threat to the
Constitution that many of us believe it does, and, if so, hopefully, we
can enact some commonsense solutions without going after
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any judge, without attacking any particular viewpoint and just have a
thoughtful examination of what type of institutional changes that
Republicans and Democrats and conservatives and liberals can all come
together on to make sure that the judiciary does its job, does the job
that our Founders intended it to do and, while doing that, we maintain
a clear separation of powers between all branches.
I can tell the gentleman that right now the judiciary may be
perceived as liberal. But in the years to come, there certainly will be
a shift to the right, and at that time I would certainly hope that the
more liberal Members in this legislative body would also be protected
in the way that our Founders would want their legislative items to be
protected.
Mr. SAM JOHNSON of Texas. Mr. Speaker, I yield to the gentleman from
Colorado [Mr. Skaggs], one of our colleagues from the other side of the
aisle who has a comment.
Mr. SKAGGS. I appreciate the gentleman yielding. I think it is
important when we are discussing something as fundamental to the
Republic as the separation of powers and the importance of an
independent judiciary that perhaps those of us with a slightly
different cut on this be heard. It seems to me absolutely essential
that we keep in mind that it is the judicial branch of Government
through long-established practice and tradition and constitutional
foundation that is the ultimate arbiter of the requirements, the
constraints, and the liberties guaranteed under the Constitution. And
so it is entirely within the prerogative, and appropriately so, for the
judiciary to either countermand the legislative branch acting through
this Congress or through State legislatures, or the people exercising
their residual legislative powers through referenda, to countermand
that when enactments violate the Constitution.
We had an occasion for that just last week in which a Reagan-
appointed judge, hardly a liberal, properly instructed this Congress
that we had violated the basic provisions of the Constitution in
attempting to give the President of the United States line-item veto
authority by statute. We need to be very careful that when we are
holding the judiciary up to scrutiny and invoking the potentiality of
impeachment, that that not be done on the basis of their exercising
their proper authorities and role under our system of government and
the division of powers, but only in those events in which they have
clearly been engaged in actionable misconduct and abuse, not merely a
difference of opinion about constitutional interpretations.
Mr. SAM JOHNSON of Texas. I do not think that is the case at all that
we are trying to enunciate here. The fact of the matter is that the
judiciary should, and I agree with the gentleman, rule on the
Constitution and constitutionality of anything that happens in the
Congress or out in the States. But the question that we are addressing
is that some of these judges, for whatever reason, political, social,
or otherwise, have ruled based on that, not necessarily a
constitutional base for their ruling.
Mr. SCARBOROUGH. If the gentleman will yield further, I will ask the
gentleman a question, because he brings up a very good point. An issue
like the line-item veto I think helps illustrate some of our concerns.
I want to say more particularly my concern is not necessarily in
individual judges, in trying to seek retribution from individual judges
because we do not like how they rule. That, obviously, causes some
serious problems. But my concerns go more to structural changes.
For instance, we had a single Federal judge in California, as the
gentleman knows, that with a single stroke of the pen wiped out the
view of 5 million Californians. The same thing with a single judge
being able to interject his opinion, and again I am not saying his
opinion is a flawed opinion. Quite frankly, even though I voted for the
line-item veto, I have some very serious concerns and I think any
reasonable man or woman could interpret it both ways.
But the question I would like to ask the gentleman is, does he think
that it would be reasonable for us as the legislative branch, who have
been given power to oversee the judiciary and decide where the
jurisdiction rests, to look at structural changes and ask a question
like, for instance, whether a single Federal judge should be empowered
to stop something through injunction or whether we should possibly have
a three-judge requirement? Again, this cuts both ways, liberal or
conservative. Would the gentleman say that is a rational question to
ask?
Mr. SKAGGS. There is no question that we have the appropriate power
as the Congress to determine jurisdictions of lesser courts, the
remedies that may be available in the cases of certain causes of
action. That is not a particularly contentious proposition.
What was worrisome to me, and I came into the Chamber after my
colleagues had been engaged for some time, was referencing again the
potential use of the impeachment powers of the Congress to get at
actions on which there is simply a disagreement as to wisdom and
propriety as opposed to going to the underlying questions of the
independence of the judicial branch of government. I think no matter
how we may couch it, if we engage in relatively casual discussion of
the invocation of impeachment, that goes right to the core and the
quick of the independence of the judicial branch of government, which
has a terribly important value to this society.
Mr. SCARBOROUGH. Exactly. The gentleman certainly will find that I
will not disagree with him on that point. We need to be very careful to
not overstep our boundaries. Obviously in extreme situations,
impeachment possibly may be looked at, but not in situations where
again reasonable men and women could differ.
Again going back to the question, does the gentleman think the time
is right for us as a legislative body or as Members in this body to
look at possible structural changes in the judiciary? Like for instance
on the three-judge panel to decide an issue on whether a proposition
that passed with 5 million votes should be handled by a single judge or
whether we should somehow protect the voters by empowering a three-
judge panel?
Mr. SKAGGS. Given that we have a tradition in comparable areas of
especially impaneled three-judge courts to deal with civil rights cases
and other constitutional matters, clearly there is precedent for that
and I do not have any problem with this body debating the relative
wisdom of having more than a single member of the bench rendering
judgment in certain very, very important matters.
I would add, however, that the number of people that happen to vote
for a referendum, while lending itself to effective rhetoric, does not
really get to the question of whether the underlying issue is clearly
one that implicates protections guaranteed by the Constitution. As the
gentleman well knows, one of the underlying objectives of our
constitutional system is to make sure that we have a government of law,
that it is not subject to the popular passions of the time which can
sometimes manifest themselves in referendums that may pass. Whether 5
million votes or more, it may nonetheless be in violation of basic
constitutional requirements.
Mr. SCARBOROUGH. The gentleman is correct. It certainly makes for
good drama when we talk about a single judge eradicating the popular
will of 5 million people. But the same thing could be said about,
again, a decision, to be really honest with the gentleman, I was
relieved on the line-item veto decision.
Mr. SKAGGS. I appreciate the gentleman's candor on that.
Mr. SCARBOROUGH. But still structurally again, there is a question on
whether we would want a single judge being able to sign off on that,
because by this single judge doing that, he has put himself in the
middle of a 3-year budget debate that seriously impacts the White
House's ability and Congress's ability to figure out where we are going
to go in the next few months. I would personally like to see at least a
safety net of three judges looking at an issue that important.
Mr. SAM JOHNSON of Texas. I appreciate the gentleman from Colorado
[Mr. Skaggs] talking with us.
Let me just read the gentleman from article 3, section 1, Ralph
Burger's comment, he is a legal commentator, who says that the framers
of our Constitution did not intend to shelter those who indulge in
disgraceful conduct short of great offenses, meaning
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that the high crimes and misdemeanors does not necessarily have to be
an offense that is written into the law. It is not to import the
standards of good behavior into high crimes and misdemeanors, but to
indicate that serious infractions of good behavior, though less than a
great offense, may yet amount to high crimes and misdemeanors in common
law.
What he is saying is that judges ought to act like judges and they
ought to rule on the Constitution, as you and I both agree on, and that
is all we are trying to say.
Mr. SKAGGS. Amen.
Mr. SAM JOHNSON of Texas. I thank the gentleman from Colorado [Mr.
Skaggs], and I thank the gentleman from Florida [Mr. Scarborough].
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