[Congressional Record Volume 143, Number 51 (Friday, April 25, 1997)]
[Senate]
[Pages S3722-S3724]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     TERM LIMITS FOR FEDERAL JUDGES

  Mr. SMITH of New Hampshire. Mr. President, earlier this week I 
introduced a piece of legislation that no doubt will create some 
discussion, if not controversy, around the country. It involves the 
term limits for judges--Federal judges.
  This is something that, of course, would change the Constitution, so 
it would be a constitutional amendment. For over 200 years we have had 
lifetime appointments for judges, so I did not expect to have 100 
Senators and all Members of the House, and everybody writing in, all 
over America, supporting this proposal, as soon as I introduced the 
proposal.
  However, I do hope, as people think about it and carefully consider 
it, they begin to realize how important I think this change to our 
Constitution would be. I think, frankly, Jefferson and Hamilton would 
support the amendment if they were here today, because if they could 
look back on history and see what has happened in the Federal 
Judiciary, I think they would agree with me it is time we put term 
limits on judges.
  Senator Shelby of Alabama has joined me in this effort. We call it 
Senate Joint Resolution 26. It is a constitutional amendment for term 
limits for judges. When I introduced the amendment a couple of days ago 
I did not have the opportunity, because of debate on the Chemical 
Weapons Convention, I did not have the opportunity to make a few 
remarks. I want to take this time to do that.
  Mr. President, the Framers of our Constitution intended that the 
judicial branch, which was created by article III in the Constitution, 
would have a limited role. That was their strong belief, that the role 
be limited, and that they be an equal partner in the three parts of our 
Government. They believed in the necessity of judicial restraint, and 
they recognized, and said so, the danger of judicial activism.

  Now, in Federalist No. 48, James Madison wrote that to combine the 
judicial power with executive and legislative authority would be the 
very definition of tyranny. Madison's own words--``The very definition 
of tyranny.'' To repeat, to combine the judicial power with executive 
and judicial authority would be the very definition of tyranny.
  Thomas Jefferson said, ``The very notion that the Supreme Court 
should have the final word on constitutional questions is a very 
dangerous doctrine, to consider the judge as the ultimate arbiters of 
all constitutional questions.'' He also said, ``It is one which would 
place us under the despotism of an oligarchy,'' meaning government of 
the select few. Very interesting that Jefferson and Madison, of all 
people, would be saying that.

[[Page S3723]]

  It is interesting to look at the debate as the Constitution was 
written. Some people like to decide what they think the intent of the 
Founding Fathers was as we look at these court decisions that have been 
made over the past couple hundred years, but it is interesting to look 
at what they said. Sometimes what they said, what they actually said, 
the Founding Fathers, and what other people think they meant are not 
one and the same and are totally different.
  Another founder, in Federalist No. 78, Alexander Hamilton, argued 
that the judicial branch ``will always be the least dangerous to the 
political rights of the Constitution. Courts have neither force nor 
will but merely judgment, and can take no active resolution whatever.''
  That was Hamilton.
  Even as he advocated the ratification of the Constitution, and he was 
one of the strongest advocates as the Federalist Papers prove, he also 
issued a warning. The courts, he said, must declare the sense of the 
law. If they should be disposed--they being the justices, the judges--
to exercise will, will, instead of judgment, the consequence would 
equally be the substitution of their pleasure to that of the 
legislative body.
  So, what a judge's personal view is, what his or her pleasure is in 
terms of a decision is irrelevant, is not the issue. It is what the 
best judgment in terms of the interpretation of the Constitution is. 
Mr. President, 200 years after Alexander Hamilton issued this warning, 
it is abundantly clear that the abuse of judicial power that he feared 
has become a reality. If Hamilton were here today, I believe he would 
be the first to recognize it.
  Instead of applying law as they find it in a neutral manner, which is 
a judge's role, exercising what Hamilton called their judgment, 
activist judges are in effect substituting their own policy views, in 
what Hamilton called their will, for the policies established by the 
people through their elected representatives in the political branches 
of the Government.
  Now, Mr. President, I have been in the Congress for 13 years and I 
have thought a lot about this. Thirteen years ago I thought about 
introducing an amendment to do this, but I did not. I sat back and 
said, Maybe this will change, maybe I am wrong. Maybe Hamilton was 
wrong. Maybe it is not as bad as I think. The truth of the matter is, 
it is worse than I thought.
  Finally, the last 2 or 3 weeks I finally made up my mind that the 
time has come, and I think there is a lot of proof to show and to 
demonstrate that the time has come. Let me give some examples, and this 
is not meant in any way to impugn the integrity of the three justices 
that I will mention. They were fine individuals who acted as they saw 
fit to interpret the Constitution. I want to make a point here. 
Justices Brennan, Marshall, and Blackmun have all taken their personal 
opposition to the death penalty and read it into the Constitution.

  Now, the Founding Fathers discussed capital punishment as they wrote 
the Constitution. They mentioned capital punishment in the 
Constitution. The death penalty is explicitly mentioned and its 
constitutionality is unquestionable in the due process clauses of both 
the 5th and 14th amendments to the Constitution. Yet, these three 
Justices rendered decisions time and time again because of their 
personal opposition to the death penalty. Whatever anyone's view is of 
the death penalty is not relevant when a matter comes before the Court, 
if the intent of the Founders and the Constitution itself says that the 
death penalty is constitutional. What a personal view is--for or 
against it--is irrelevant. Yet, decisions were made because of their 
personal opposition to the death penalty. That is judicial activism.
  Evidently taking their cue from Supreme Court Justices who feel free 
to ignore the plain meaning of the Constitution, judges on the Federal 
courts of appeals have also engaged in what amounts to legislating from 
the bench.
  More examples:
  Two U.S. courts of appeals--the ninth and the second circuits--have 
discovered in the post-Civil War 14th amendment a heretofore unknown 
constitutional right to physician-assisted suicide. They have just 
discovered this.
  Now, that is a pretty bizarre reading of the 14th amendment that 
simply cannot be justified by the language, it cannot be justified by 
the meaning, and it cannot be justified even by the history of the 
constitutional provisions in question. Yet, the ninth and second 
circuits, two U.S. courts of appeals, have discovered that, now, in 
this post-Civil War 14th amendment, we now have a constitutional right 
to physician-assisted suicide. Where does it say that in the 
Constitution? It doesn't matter to these judges whether it says it or 
not. Likewise, Federal district judges have repeatedly abused their 
authority by blocking the implementation of entirely constitutional 
measures enacted through State ballot referenda simply because they 
disagree with the policy judgments of the voters. Now, again, that is 
not the role of a Federal judge. Just since 1996, a single Federal 
district judge, who had been an activist with the ACLU before going on 
the bench, blocked the implementation of the California civil rights 
initiative. However you feel about the initiative, for or against, 
isn't the issue. The California voters passed it in the State. Earlier 
this month, in reversing the judge's order, the U.S. Court of Appeals 
made the compelling comment that ``A system which permits one judge to 
block, with a stroke of a pen, what 4,736,180 State residents voted to 
enact as law, tests the integrity of our constitutional democracy.''
  Who said that, because a judge is appointed to a court of the Federal 
Government, they are omnipotent, that they are flawless, that they are 
perfect? I don't recall that in the Constitution. I don't recall that 
in the discussions of the Founders. Judges are human beings, and they 
can be wrong. Consider the Dred Scott case in 1857, if you think judges 
are perfect. There will be some out there, probably from the American 
Bar Association, who will notify me over the weekend, or on Monday, 
that they are, because I am sure they are opposed to this amendment. 
But in 1857, the Supreme Court Chief Justice Roger Taney was sitting on 
the Court when a black former slave by the name of Dred Scott tried to 
bring a case before the Supreme Court for his freedom. Taney wrote the 
deciding majority decision, and he said Dred Scott couldn't sue in 
Federal Court because he was ``property,'' not a human being. Now, was 
that Justice right in that decision? No, he was not right, but he did 
it and there was no recourse because he was a lifetime appointee.
  There are many more examples, Mr. President, of activist judges who 
have taken control of prisons and school districts. There was the 
famous Kansas City case, where a judge raised the taxes of the city of 
Kansas City to pay for school busing. Activist judges have ordered tax 
increases, and they have created new rules to protect criminal 
defendants that result in killers, rapists, and other violent criminals 
being turned loose to continue to prey on society.
  Almost every time you hear about some horrible murder, a violent 
crime against another member of our society, almost every time, if you 
read below the headline, you will find that this person was out on 
parole, or was released by a judge and given a second chance. He 
probably had a difficult childhood, so we have to give him another 
chance to kill or rape somebody else, or beat somebody else up, or 
abuse some child. We have to give him a third chance and a fourth 
chance. Time and time and time again, over the last 30, 40 years, these 
judges have put these animals back on the street to prey on us and prey 
on us and prey on us. But they are perfect, these judges--lifetime, no 
touch; you can't do anything about it. It is time, Mr. President, that 
we stop it.
  Former U.S. Attorney General Edwin Meese estimates that over 100,000 
criminal cases each year cannot be successfully prosecuted because of 
these court-created rules. You can't even prosecute some of these 
people because of these rules. Judicial activism has become such a 
severe problem that one of the leaders of the House, Representative Tom 
DeLay of Texas, has even suggested that we ought to consider using the 
constitutional power of impeachment to remove activist Federal judges 
from office.
  Now, I understand Congressman DeLay's concern. It is a justifiable 
concern, but I think there is a better way to do this, which is to 
limit their terms--limit their terms. That way,

[[Page S3724]]

after a Federal judge has served 10 years--and that is what my 
amendment does, limit the term to 10 years--if the President wants to 
reappoint a judge who does some of these horrible things I have talked 
about, and that person can get through the Senate confirmation process, 
good luck. But at least we would have had the opportunity, as the 
elected representatives of the American people, to say, hold on, this 
person has made decisions that are ridiculous and we are not going to 
tolerate it.
  The term limits for judges amendment would end the life tenure for 
judges on the district court, circuit courts, and the Supreme Court--
all three levels of the Federal judiciary. They would be nominated by 
the President, and with the advice and consent of the Senate they would 
be appointed for 10-year terms. They could be reappointed. The good 
thing about this proposal, Mr. President, is that no President of the 
United States would have the opportunity to reappoint a judge because, 
as we all know, the President's term is limited to two terms, 8 years. 
He or she could also serve up to an additional 2 years of a President 
who left office, if that person were the Vice President. So the maximum 
they could serve would be 9 years and 364 days. Therefore, that same 
President would not have the opportunity to reappoint a judge.
  Now, my amendment does not remove current judges from office--we do 
have a grandfather clause--but it would get things started, and we 
would begin to have this opportunity to see some change.
  Activist judges are routinely violating the separation of powers by 
usurping legislative and executive powers. This is a widespread abuse 
of judicial authority, and it is serious enough to warrant a 
constitutional response. Term limits for judges would establish a check 
on the power of activist judges, and no longer could they abuse their 
authority with impunity. Under the term limits for judges amendment, 
judges who used their offices by imposing their own policy views, 
instead of interpreting the laws in good faith, could be passed over 
for new terms by the President, or rejected for reappointment by the 
Senate if the President persisted in offering the name up.
  The term limits for judges amendment would make the President and the 
Senate more accountable to the people for their judicial selections. 
Now, you are going to hear the argument--and probably many listening to 
me now are already thinking it--that ``this is just going to interject 
politics; politics is now going to be in all the court decisions, and 
all judges are going to make decisions based on politics so they can be 
reappointed.''
  Stop and think about that argument. If a judge is good and if a judge 
is honest and has integrity and makes a decision in his or her mind 
based on what is right, under the Constitution, if that's the case--and 
I would think that all of us would like to think that every judge fits 
that mold--but if that's the case, then, why would a judge make a 
different decision if that judge knew they were only going to be there 
for 10 years or life? What difference does it make? The point is, if 
they are good and they think it is a right decision under the law, then 
you make your decision whether you are going to be there 1 day or 100 
years. What difference does it make?
  The opposite has happened, Mr. President. What has happened now is 
that judges, knowing that they can't be touched, knowing that they have 
a lifetime appointment, are now making decisions that are political. 
They are imposing their will upon the American people, rather than 
actually judging the Constitution and interpreting the Constitution as 
the Founding Fathers suggested.
  With all due respect to the criticism, the modern-day judiciary is 
too independent and too unaccountable to the taxpayers and to the 
people who pay their salaries and pay for their courthouses all over 
America. They are insulated by life tenure and free, for all intents 
and purposes, from any threat of impeachment. You have to commit a high 
crime to be removed from office as a Federal judge; we all know that. 
Very few judges in history have had that happen.
  These activist judges, because of almost impunity, feel free to 
impose their political will on all of us, without having to answer to 
anybody. I believe that judges appointed for 10-year terms would be far 
more likely to follow that law rather than imposing their political 
will. The best way to go for a judge serving a 10-year term, who would 
like to serve another 10, would be to follow the law and not his or her 
own political agenda. Follow the law. That is what we put you on the 
bench to do, to follow the law. That applies to a conservative judge as 
well as a liberal judge. No conservative agenda, no liberal agenda. 
Follow the law. If you follow the law, you will get reappointed. If you 
don't follow the law and you follow your agenda, you don't.
  It is interesting, when you talk to those who oppose this amendment, 
they are very aggressive in saying, ``Well, these judges are fine 
people and you are impugning the integrity of judges.'' There will 
always be--unless Congress changes it--nine slots on the Supreme Court. 
The world is not going to come to an end if one judge leaves and 
another takes his or her place. We are not irreplaceable. So that is 
not a valid argument. It is very bogus. If one judge leaves--or if it 
is the Supreme Court, one Justice leaves--another judge or Justice 
takes his or her place.
  So what? It doesn't have to be the same person for life making these 
decisions.
  So, Mr. President, I just want to notify my colleagues that I welcome 
their support. I don't expect the door to be beaten down over the next 
few days. But I am going to be very, very aggressive and very, very 
persistent in taking this case to the American people that it is time 
for a change in our Constitution. No one wants to amend the 
Constitution unless it is absolutely necessary. But I think if every 
American citizen would look at what has happened with some of these 
outrageous judicial decisions by activist judges who have gone far 
beyond what the intent of the Constitution was, they would recognize 
that it is time for a change.
  Hamilton said it, Madison said it, and Jefferson said it; three 
pretty distinguished Founding Fathers, if I do say so myself. They 
warned us. I read for you their quotes. We know how they felt.
  I think it is time that we pursue this. I intend to take this case to 
the American people because I have seen polls on this that indicate 
that over 85 percent of the American people support term limits for 
judges. We have term limits for the Presidents. A lot of people favor 
trying to pass term limits for Members of Congress. Why not term limits 
for judges? Why does the world come to an end, and why does 
constitutional democracy of the United States of America come to an end 
because we don't have lifetime judges? That is ridiculous. The argument 
is silly.
  The Founding Fathers warned us on the possibility of this. And some 
will say, ``OK. Why didn't they put in the Constitution that we have 
term limits?'' Because they could not possibly imagine what judges 
would have done in the past 200 years.
  But I guarantee that if Hamilton, Jefferson, and Madison could vote 
today they would be voting for this amendment, and they would be 
supporting this amendment.
  Mr. President, I yield the floor. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. SMITH of New Hampshire. Mr. President, I ask unanimous consent 
that the order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________