[Congressional Record Volume 150, Number 115 (Wednesday, September 22, 2004)]
[Extensions of Remarks]
[Page E1687]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        THE ASSAULT ON THE INDEPENDENCE OF THE FEDERAL JUDICIARY

                                 ______
                                 

                         HON. JOHN CONYERS, JR.

                              of michigan

                    in the house of representatives

                     Wednesday, September 22, 2004

  Mr. CONYERS. Mr. Speaker, I must inform you that Congress in general, 
and the House of Representatives in particular, is engaged in an 
unprecedented assault on the Judiciary, the crown jewel of our 
constitutional system.
  In the last 2 years, Congress has undertaken a series of discrete, 
but interrelated actions that undermine our constitutional framework. 
By hamstringing, harassing, and weakening the Judicial Branch, these 
actions threaten to rob the Judiciary of its independence. The House 
has pushed unconstitutional legislation to prevent the courts from 
reviewing legislation, to take away the ability of judges to issue fair 
sentences in criminal cases, and to intimidate judges into following 
politically conservative beliefs when making rulings.
  If enacted, these bills would, for the first time, prevent federal 
courts from reviewing the constitutionality of federal laws:
  First, H.R. 3313 (Marriage Protection Act) prevents federal courts 
and the Supreme Court from reviewing challenges to the Defense of 
Marriage Act. It passed the House this past July by a vote of 233-194.
  Second, H.R. 2028 (Pledge Protection Act of 2003), which prevents 
courts created by Congress and the Supreme Court from reviewing First 
Amendment challenges to the Pledge of Allegiance. This will be on the 
House floor on Thursday, September 23, 2004.
  Finally, H.R. 3799 (Constitution Restoration Act of 2004) is a 
response to anger at two federal court decisions that cited foreign law 
and found certain governmental invocations of God to violate the First 
Amendment. H.R. 3799 would strip federal courts of jurisdiction to hear 
such cases. And here's the kicker: H.R. 3799 declares it an impeachable 
offense for a judge to decide that H.R. 3799 violates the Constitution. 
In one fell swoop, Congress would overturn the centuries-old principle 
that judges have the ultimate power to decide if our laws violate the 
Constitution.
  Aside from their political attack of the judiciary, these bills are 
unconstitutional in that they violate separation of powers, equal 
protection, due process, and the supremacy clause. Congress is 
challenging Justice John Marshall's famous pronouncement from Marbury 
v. Madison that it is the province of the courts to ``say what the law 
is.`'
  On top of that, permitting state courts to be the final arbiters of 
federal constitutional law will bring disarray to the Nation, also in 
violation of the Constitution. The Supremacy Clause of article VI 
states that the Constitution shall be the supreme law of the land, but 
dividing our Nation into fifty different legal regimes is the 
antithesis of this sacred principle. Enacting these proposals would 
constitute an undesirable precedent and lead to further assaults on the 
Judiciary.
  Considering that the highest court in our land has not issued a 
single opinion undermining the Pledge or the Defense of Marriage Act, 
it is inexcusable to attack the judiciary to score political points.
  The irony is that the House is celebrating Justice John Marshall by 
authorizing a commemorative coin in his honor, at the same time that it 
is passing the Pledge Protection Act and the Marriage Protection Act. 
These bills are entirely inconsistent with Marbury v. Madison, Justice 
Marshall's seminal opinion. At a time when it is more important than 
ever that our Nation stand out as a beacon of freedom, we should not 
countenance bills that undermine the very protector of those freedoms--
our independent judiciary.
  These unprecedented court stripping bills are nothing more than 
modern day versions of ``court packing.'' Just as President Franklin 
Roosevelt's efforts to control the outcome of the Supreme Court by 
packing it with loyalists was rejected by Congress in the 1930s, 
thereby preserving the independence of the federal judiciary, so too 
must this modern day effort to show the courts ``who is boss'' fail as 
well.
  Last year, Congress undertook another line of attack against the 
Judiciary through the controversial ``Feeney amendment.'' This 
misguided legislation eliminated most of the discretion judges had when 
making sentencing determinations.
  If we have learned anything over the years, it is that mandatory 
minimum sentences are counterproductive. They do not reduce crime. They 
punish the smaller players and their families. They distract from 
dealing with the real problems. And they waste precious resources.
  Moreover, the amendment's imposition of burdensome reporting 
requirements, combined with Congress's demonstrated willingness to 
investigate the sentencing practices of specific judges, represent a 
shameless attempt to intimidate judges.
  Last, but not least, I am concerned that by failing to provide judges 
with annual cost of living adjustments over the last decade, federal 
judges have faced the equivalent of a $77,000 reduction in salary. In 
the last 30 years, while average pay has increased 12 percent for most 
workers, it has decreased 25 percent for judges. This has made it 
increasingly difficult for the judiciary to attract and retain talented 
lawyers to its ranks.
  That is why I joined my colleagues in introducing a bill, H.R. 2118, 
to increase the salaries of all federal judges by 16.5 percent.
  In the short history of our Republic, the political branches of 
government have all too frequently ridden the prevailing political 
breeze to constitutional excess.
  An independent judiciary is all that protects our constitutionally 
guaranteed rights against the depredations of the political branches. 
If the judiciary is too cowed or disabled to protect us, each citizen 
will be at the mercy of the evershifting political winds.

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