[Congressional Record Volume 151, Number 38 (Wednesday, April 6, 2005)]
[House]
[Pages H1824-H1825]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL POWER GRAB

  The SPEAKER pro tempore. Under a previous order of the House, the 
gentleman from Tennessee (Mr. Duncan) is recognized for 5 minutes.
  Mr. DUNCAN. Mr. Speaker, regardless of how one feels about the Terri 
Schiavo case, and regardless of whether one is a liberal or a 
conservative, everyone should be concerned that the judiciary seems to 
be setting itself up as a type of superlegislature.
  Our Founding Fathers clearly did not mean for the judicial branch to 
be superior to or more powerful than the legislative and executive 
branches.
  A Member of the other body, former State supreme court justice, the 
gentleman from Texas (Mr. Cornyn), made some very serious charges on 
the floor of the Senate Monday. He said, ``It causes a lot of people 
great distress to see judges use the authority they have been given to 
make raw political or ideological decisions.''
  He added that ``sometimes the Supreme Court has taken on this role as 
a policymaker rather than an enforcer of political decisions made by 
elected representatives of the people.''
  The reason people on both sides of the political spectrum should be 
concerned about this judicial power grab is that the political pendulum 
swings. Sometimes conservatives control legislative bodies; sometimes 
liberals do. Would liberals someday want conservative judges overruling 
their legislation?
  The Schiavo bill was very narrowly drawn to apply to just that case 
at the request or insistence of more liberal Members of both the House 
and Senate.

                              {time}  1615

  Then some liberals in the media, in Congress, and in the courts 
criticized the bill as being too narrowly drawn. One judge, showing 
great arrogance, even scolded the Congress for acting, issuing a bitter 
non-judicial type of an opinion.
  I served for 7\1/2\ years as a circuit court or State trial court 
judge in Tennessee. I have great respect for the legal profession and 
the judiciary. When I attended George Washington University's law 
school in the early 1970s, I took a course in legislative law. We were 
taught then that the courts were not legislatures. They were not to be 
political bodies, and they were to give great deference to the actions 
of the Congress and the State legislatures.
  In fact, we were taught, through a great amount of case law, that the 
primary role of the courts was to try to determine legislative intent, 
not to try, whenever possible, to overrule it anytime judges might 
disagree for personal and/or political reasons.
  The intent of the Congress was clear in the Schiavo case, with the 
bill passing the House 203 to 58 with strong support from both bodies 
and by unanimous agreement in the Senate. Are we now to have some type 
of judicial dictatorship?
  Thomas Jefferson, in a letter written in September of 1820, said 
this, responding to the arguments that Federal judges should be the 
final interpreters of the Constitution: ``You seem to consider the 
Federal judges as the ultimate arbiters of all constitutional 
questions, a very dangerous doctrine, indeed, and one which would place 
us under the despotism of an oligarchy. Our judges are as honest as 
other men, and not more so. They have with others the same passions for 
the party, for power, and the privilege of the corps. Their power is 
the more dangerous, as they are in office for life and not responsible, 
as the other functionaries are, to the elective control. The 
Constitution has erected no such single tribunal.'' A quote from Thomas 
Jefferson.
  Alexander Hamilton, writing many years ago in Federalist Paper No. 
81, said: ``To avoid all inconveniences, it will be safest to declare 
generally that the Supreme Court shall possess appellate jurisdictions 
that shall be subject to such exceptions and regulations as the 
national legislature may prescribe. This will enable the government to 
modify this in such a manner as will best answer the ends of public 
justice and security.''
  All judges are elected or appointed through a political process, yet 
many do not like to admit this either to

[[Page H1825]]

themselves or to others. So they sometimes go to extremes and bend over 
backwards to prove how nonpolitical they are. They leap at the 
opportunity to rule against a political defendant or show their power 
by overturning a political decision by Congress or some other 
legislative body.
  Federal judges in particular are not only unelected; they are, as a 
practical matter, almost totally unaccountable. Thus they have very 
great power, which is very easy to abuse. For most of the history of 
this country, Federal judges exercised this power with great restraint, 
giving great deference to legislative bodies. For many years now, 
however, we have had far too many judges who have lost their humility 
and have not shown this same restraint. In the process of trying to 
show how nonpolitical and above politics they are, they have ironically 
become more political than ever before.
  This has become so common that now a majority of people in this 
country have become upset with government by the Judiciary instead of 
by coequal legislative and executive bodies. We are going down a 
dangerous path, Mr. Speaker, and one that was clearly not intended by 
our Founding Fathers or the Constitution they gave us.
  We are supposed to have a government of, by, and for the people, not 
one that ignores clear legislative intent and becomes one that is only 
of, by, and for the courts and of, by, and for very political and 
power-hungry judges.

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