[Congressional Record Volume 144, Number 2 (Wednesday, January 28, 1998)]
[Extensions of Remarks]
[Page E48]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    CONGRESS AND THE FEDERAL COURTS

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                          HON. LEE H. HAMILTON

                               of indiana

                    in the house of representatives

                      Wednesday, January 28, 1998

  Mr. HAMILTON. Mr. Speaker, I would like to insert my Washington 
Report for Wednesday, January 21, 1998 into the Congressional Record:

                    Congress and the Federal Courts

       I am impressed by how much Congress' view of the Supreme 
     Court and the rest of our federal court system has changed 
     since I first came to Congress in 1965. Back then, the 
     actions of the federal courts particularly the Supreme Court, 
     were watched with great interest. The courts, for better or 
     worse, helped change the country, enforcing civil rights 
     laws, expanding civil liberties, and opening up the 
     democratic process. Their decisions spurred sharp 
     congressional debate and reaction.
       Congress, today, may spar with the President over court 
     appointments or disagree with certain lower court decisions, 
     but it seems more detached from the actual work of the 
     federal judiciary, particularly as it relates to the exercise 
     of congressional power. There are several possible 
     explanations for this change. First, the Supreme Court, 
     reflecting the conservatism of its majority, has taken a 
     lower profile, and fewer cases, than did the Warren and 
     Burger courts. Second, the congressional agenda has shifted 
     from civil rights and anti-poverty efforts--areas of the law 
     where the Court was traditionally active--to budgetary 
     matters--where it was far less so. Third, Congress itself has 
     become more conservative, and many members are comfortable 
     with most of the Court's rulings.
       The 1996-1997 term of the Supreme Court further underscores 
     the changed relationship between Congress and the courts. The 
     term was perhaps the most significant in a decade, as the 
     Court invalidated three federal laws and struck several blows 
     for states' rights at the expense of Congress. The Court sent 
     a powerful message to congress about the Court's role in 
     redesigning the institutions of our government and in 
     allocating power among them. I was surprised by the relative 
     indifference of Congress to these decisions.
       Constitutional scheme: The federal judiciary is an 
     important part of our system of checks and balances. The 
     federal courts not only decide cases, but also enforce 
     important constitutional values. They can act as a bulwark 
     against government power, particularly in the defense of 
     individual liberties. They can protect state interest from 
     encroachment by the federal government. They can also check 
     overreaching by the executive and legislative branches.
       The Framers viewed the judiciary as the weakest of three 
     branches of the federal government, but still included 
     constitutional limits on the exercise of judicial power. The 
     Constitution requires the creation of a Supreme Court, but 
     gives Congress the discretion to establish lower federal 
     courts. Likewise, the Constitution, subject to certain 
     exceptions, gives Congress the authority to regulate the 
     jurisdiction of the federal courts--that is, regulate the 
     types of cases the courts may hear. Congress has over the 
     years generally expanded the jurisdiction of the courts, but 
     has also acted in certain areas to curtail or even eliminate 
     jurisdiction. Finally, Congress controls the pay of federal 
     judges, and the Senate has the responsibility of confirming 
     Presidential nominees to the courts.
       Current problems: Friction between Congress and the federal 
     courts has focused in recent years on two primary areas: pay 
     and workload. First, many federal judges complain their 
     salaries have not kept pace with inflation over the last four 
     years, although Congress did approve a cost-of-living 
     increase for the federal bench for 1998. Congress, in 
     general, has linked the pay of federal judges to that of 
     other senior government officials, including Representatives 
     and Senators, so that all salaries of senior officials stay 
     in the same range. The problem, judges say, is that Congress 
     rarely gives itself a raise, so judicial salaries, which 
     range from $125,700 for bankruptcy judges to $175,400 for the 
     Chief Justice of the Supreme Court, lose value over time. 
     This, in turn, hurts morale and makes it harder to attract 
     top-flight candidates to the federal bench. The answer, 
     judges say, and I agree, is to fund congressional and 
     judicial salaries separately.
       Second, federal judges are concerned about the increasing 
     caseload for the federal judiciary. As Chief Justice 
     Rehnquist noted in a year-end report, caseload has increased 
     in part because Congress has expanded federal court 
     jurisdiction over crimes involving drugs and firearms--so 
     federal courts now hear more cases in these areas--and in 
     part because the Senate has not confirmed nominees for the 
     federal courts. Currently, 82 of the 846 judicial offices are 
     vacant, and 26 of the vacancies have been in existence for 18 
     months or longer. The President has been slow to make 
     nominations, but the real problem has been the Senate's 
     failure to act on nominees in a timely manner. Some Senators 
     complain that the President nominates ``activist'' judges who 
     expand the law beyond the intent of Congress. My impression 
     is that the President's judicial nominees are notably 
     moderate. Each Senator is entitled to his opinion, but the 
     proper response by an objecting Senator is to vote against 
     the nominee, not to slow or block the nomination process. 
     These vacancies over time erode the quality of justice.
       Congress has several possible options for easing the 
     workload of the federal courts. First, I agree with the Chief 
     Justice that the Senate should act within a reasonable time 
     to confirm or reject the President's court nominees. Second, 
     Congress could consider measures to limit the jurisdiction of 
     the federal courts in certain areas. Congress has acted in 
     recent years to limit access to federal courts in habeas 
     corpus petitions by state and federal prisoners. Justice 
     Rehnquist has proposed curtailing federal jurisdiction in so-
     called ``diversity of citizenship'' cases as well to further 
     limit caseload; diversity cases, which constitute 20% of 
     federal civil cases, are essentially state law claims tried 
     in federal court because the opposing parties are from 
     different states. Third, some federal judges have urged 
     Congress to draft laws with more precision to avoid years of 
     litigating the meaning of certain statutes. Congress does 
     need to do a better job of eliminating such uncertainties, 
     but that is easier said than done. The difficulty of gaining 
     majorities in support of bills often means that ambiguous 
     language is necessary to get a bill passed.
       Conclusion: The federal judiciary is the least understood 
     branch of our government, perhaps reflecting the subtle way 
     in which the courts exercise power. The judicial branch has 
     neither the sword of the executive branch nor the purse of 
     the legislative branch, but rather must exercise power as the 
     authoritative expounder of the Constitution. It is a 
     testament to the strength of our democracy that the judgments 
     of our courts, particularly the Supreme Court, are observed 
     and that the judiciary has and will continue to play an 
     instrumental role in defining our institutions of government 
     and the scope of our rights as individual citizens.

     

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