[Congressional Record Volume 151, Number 52 (Tuesday, April 26, 2005)]
[Extensions of Remarks]
[Pages E758-E759]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




            THEODORE OLSON DEFENDS AN INDEPENDENT JUDICIARY

                                 ______
                                 

                           HON. BARNEY FRANK

                            of massachusetts

                    in the house of representatives

                        Tuesday, April 26, 2005

  Mr. FRANK of Massachusetts. Mr. Speaker, Theodore Olson, most 
recently Solicitor General under President George Bush from June 2001 
until July of last year, is without question one of the leading members 
of the American Bar, and a very important figure in conservative 
politics. Mr. Olson understands that there not only is no conflict 
between an energetic political and intellectual conservatism and a deep 
respect for an independent judiciary, but that in fact the two are, as 
American history shows, wholly complementary, and in some ways 
reinforcing.
  On April 21, Mr. Olson published a cogent, well-argued essay in the 
Wall Street Journal headlined Lay Off Our Judiciary. The article is an 
impressive rebuttal to some of the irresponsible, thoughtless attacks 
that have been made both on specific judges and on the notion of an 
independent judiciary. Clearly, Mr. Olson makes these arguments out of 
a genuine commitment to the institution of an independent judiciary, 
and not because he takes one side or another in a particular dispute 
that has found its way to the courts or to Congress. As he notes, 
``calls to investigate judges who have made unpopular decisions are 
particularly misguided, and if actually pursued, would undermine the 
independence that is vital to the integrity of judicial systems.''
  Mr. Olson goes on to be very critical of various aspects of the 
nomination battles now occurring in the Senate. I do not agree with 
everything he says here, but the importance of his overall affirmation 
of the centrality of an independent judiciary to our system of 
governance is so relevant to current political debates that I ask that 
it be printed here.

             [From the Wall Street Journal, Apr. 21, 2005]

                         Lay Off Our Judiciary

                         (By Theodore B. Olson}

       A prominent member of the Senate leadership recently 
     described a Supreme Court justice as ``a disgrace.'' An 
     equally prominent member of the leadership of the House of 
     Representatives on the other side of the political aisle has 
     characterized another justice's approach to adjudication as 
     ``incredibly outrageous.'' These excoriations follow other 
     examples of personalized attacks on members of the judiciary 
     by senior political figures. So it is time to take a deep 
     breath, step back, and inject a little perspective into the 
     recent heated rhetoric about judges and the courts.
       We might start by getting a firm grip on the reality that 
     our independent judiciary is the most respected branch of our 
     government, and the envy of the world.
       Every day, thousands and thousands of judges--jurists whose 
     names we never hear, from our highest court to our most local 
     tribunal--resolve controversies, render justice, and help 
     keep the peace by providing a safe, reliable, efficient and 
     honest dispute resolution process. The pay is modest, the 
     work is frequently quite challenging, and the outcome often 
     controversial. For every winner in these cases, there is a 
     loser. Many disputes are close calls, and the judge's 
     decision is bound to be unpopular with someone. But in this 
     country we accept the decisions of judges, even when we 
     disagree on the merits, because the process itself is vastly 
     more important than any individual decision. Our courts are 
     essential to an orderly, lawful society. And a robust and 
     productive economy depends upon a consistent, predictable, 
     evenhanded, and respected rule of law. That requires 
     respected judges. Americans understand that no system is 
     perfect and no judge immune from error, but also that our 
     society would crumble if we did not respect the judicial 
     process and the judges who make it work.
       We have recently witnessed tragic violence against judges, 
     their families and court personnel in Chicago and Atlanta. 
     These incidents serve as reminders of how vulnerable the 
     judiciary is to those who may be aggrieved by judges' 
     decisions. Violence and intimidation aimed at judges is 
     plainly intolerable; all of us can, and should, be 
     unequivocally unified on the proposition that judges must be 
     protected from aggrieved litigants and acts of terrorism. The 
     wall between the rule of law and anarchy is fragile; if it is 
     penetrated, freedom, property arid liberty cannot long 
     endure.
       This is not to say that some judges don't render bad 
     decisions. Arrogant and misguided jurists exist, just as such 
     qualities may be found in the rest of the population, and our 
     citizens and elected representatives are fully justified in 
     speaking out in forceful disagreement with judges who 
     substitute their personal values or private social instincts 
     for sound jurisprudential principles. But the remedies for 
     these aberrations consist of reasoned, even sharp, criticism, 
     appeals to higher courts, and selection of candidates for 
     judicial positions that respect limits on the roles of 
     judges.
       But, absent lawlessness or corruption in the judiciary, 
     which is astonishingly rare in this country, impeaching 
     judges who render decisions we do not like is not the answer. 
     Nor is the wholesale removal of jurisdiction from federal 
     courts over such matters as prayer, abortion, or flag-
     burning. While Congress certainly has the constitutional 
     power, indeed responsibility, to restrict the jurisdiction of 
     the federal courts to ensure that judges decide only matters 
     that are properly within their constitutional role and 
     expertise, restricting the jurisdiction of courts in response 
     to unpopular decisions is an overreaction that ill-serves the 
     long-term interests of the nation. As much as we deplore 
     incidents of bad judging, we are not necessarily better off 
     with--and may dislike even more--adjudications made by 
     presidents or this year's majority in Congress.
       Calls to investigate judges who have made unpopular 
     decisions are particularly misguided, and if actually 
     pursued, would undermine the independence that is vital to 
     the integrity of judicial systems. If a judge's decisions are 
     corrupt or tainted, there are lawful recourses (prosecution 
     or impeachment); but congressional interrogations of life-
     tenured judges, presumably under oath, as to why a particular 
     decision was rendered, would constitute interference with--
     and intimidation of--the judicial process. And there is no 
     logical stopping point once this power is exercised.
       Which member of Congress, each with his or her own 
     constituency, would ask what questions of which judges about 
     what decisions? Imagine the kinds of questions asked 
     routinely in confirmation or oversight hearings. How can 
     those questions be answered about a pending or decided case? 
     And what if a judge refused to testify and defend his 
     reasoning about a particular decision? Would an impeachment 
     or prosecution for contempt of Congress follow? Either would 
     be unthinkable. Federal judges are highly unlikely to submit 
     to such a demeaning process and, if push came to shove, the 
     public would undoubtedly support the judges.

[[Page E759]]

       No discussion of the judiciary should close without 
     reference to the shambles that the Senate confirmation 
     process has become. It does no good to speculate about how or 
     when the disintegration began, which political interest has 
     been the most culpable, or the point at which the appointment 
     of judges became completely dysfunctional. That sort of 
     debate is both endless and futile. The only hope for an end 
     to the downward spiral is for the combatants to lay down 
     their arms; stop using judicial appointments to excite 
     special interest constituencies and political fund-raising; 
     move forward with votes on qualified, responsible and 
     respected nominees so that those who have the support of a 
     majority of the Senate can be confirmed, as contemplated by 
     the Constitution; and remove the rancor and gamesmanship from 
     the judicial selection process.
       We expect dignity, wisdom, decency, civility, integrity and 
     restraint from our judges. It is time to exercise those same 
     characteristics in our dealings with, and commentary on, 
     those same judges--from their appointment and confirmation, 
     to their decision-making once they take office.

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