[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

[[Page H1589]]

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 

[[Page H1590]]

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

[[Page H1591]]

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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