[Congressional Record Volume 151, Number 77 (Monday, June 13, 2005)]
[Senate]
[Pages S6399-S6400]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 PRESS COLUMNS ON JUDICIAL NOMINATIONS

  Mr. KYL. Mr. President, a column published recently by Lino A. 
Graglia in the Wall Street Journal, and another by Charles Krauthammer 
in the Washington Post, frame particularly well the debate we are 
having in the Senate on judicial nominations. I ask unanimous consent 
that these columns be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

              [From the Wall Street Journal, May 24, 2005]

            Our Constitution Faces Death by Due ``Process''

                          (By Lino A. Graglia)

       The battles in Congress over the appointment of even lower 
     court federal judges reveal a recognition that federal judges 
     are now, to a large extent, our real lawmakers. Proposals to 
     amend the Constitution to remove lifetime tenure for Supreme 
     Court justices, or to require that rulings of 
     unconstitutionality be by more than a majority (5-4) vote, do 
     not address the source of the problem. The Constitution is 
     very difficult to amend--probably the most difficult of any 
     supposedly democratic government. If opponents of rule by 
     judges secure the political power to obtain an amendment, it 
     should be one that addresses the problem at its source, which 
     is that contemporary constitutional law has very little to do 
     with the Constitution.
       Judge-made constitutional law is the product of judicial 
     review--the power of judges to disallow policy choices made 
     by other officials of government, supposedly on the ground 
     that they are prohibited by the Constitution. Thomas 
     Jefferson warned that judges, always eager to expand their 
     own jurisdiction, would ``twist and shape'' the Constitution 
     ``as an artist shapes a ball of wax.'' This is exactly what 
     has happened.
       The Constitution is a very short document, easily printed 
     on a dozen pages. The Framers wisely meant to preclude very 
     few policy choices that legislators, at least as committed to 
     American principles of government as judges, would have 
     occasion to make.
       The essential irrelevance of the Constitution to 
     contemporary constitutional law should be clear enough from 
     the fact that the great majority of Supreme Court rulings of 
     unconstitutionality involve state, not federal, law; and 
     nearly all of them purport to be based on a single 
     constitutional provision, the 14th Amendment--in fact, on 
     only four words in one sentence of the Amendment, ``due 
     process'' and ``equal protection.'' The 14th Amendment has to 
     a large extent become a second constitution, replacing the 
     original.
       It does not require jurisprudential sophistication to 
     realize that the justices do not decide controversial issues 
     of social policy by studying those four words. No question of 
     interpretation is involved in any of the Court's 
     controversial constitutional rulings, because there is 
     nothing to interpret. The states did not lose the power to 
     regulate abortion in 1973 in Roe v. Wade because Justice 
     Harry Blackmun discovered in the due process clause of the 
     14th Amendment, adopted in 1868, the purported basis of the 
     decision, something no one noticed before. The problem is 
     that the Supreme Court justices have made the due process and 
     equal protection clauses empty vessels into which they can 
     pour any meaning. This converts the clauses into simple 
     transferences of policy-making power from elected legislators 
     to the justices, authorizing a Court majority to remove any 
     policy issue from the ordinary political process and assign 
     it to themselves for decision. This fundamentally changes the 
     system of government created by the Constitution
       The basic principles of the Constitution are representative 
     democracy, federalism and the separation of powers, which 
     places all lawmaking power in an elected legislature with the 
     judiciary merely applying the law to individual cases. 
     Undemocratic and centralized lawmaking by the judiciary is 
     the antithesis of the constitutional system.
       The only justification for permitting judges to invalidate 
     a policy choice made in the ordinary political process is 
     that the choice is clearly prohibited by the Constitution--
     ``clearly,'' because in a democracy the judgment of elected 
     legislators should prevail in cases of doubt. Judicially 
     enforced constitutionalism raises the issue, as Jefferson 
     also pointed out, of rule of the living by the dead. But our 
     problem is not constitutionalism but judicial activism--the 
     invalidation by judges of policy choices not clearly (and 
     rarely even arguably) prohibited by the Constitution. We are 
     being ruled not by the dead but by judges all too much alive.

[[Page S6400]]

       Because most of the Supreme Court's activist rulings of 
     unconstitutionality purport to be based on a 14th Amendment 
     that it has deprived of specific meaning, the problem can be 
     very largely solved by simply restoring the 14th Amendment to 
     its original meaning, or by giving it any specific meaning. 
     The 14th Amendment was written after the Civil War to provide 
     a national guarantee of basic civil rights to blacks. If a 
     constitutional amendment could be adopted reconfining the 
     14th Amendment to that purpose or, better still, expanding it 
     to a general prohibition of all official racial 
     discrimination, the Court's free-hand remaking of domestic 
     social policy for the nation would largely come to an end. If 
     the justices lost the ability to invalidate state law on the 
     basis of their political preferences, their ability and 
     willingness to invalidate federal law on this basis would 
     likely also diminish.
       Plato argued for government by philosopher-kings, but who 
     could argue for a system of government by lawyer-kings? No 
     one can argue openly that leaving the final decision on 
     issues of basic social policy to majority vote of nine 
     lawyers--unelected and life-tenured, making policy decisions 
     for the nation as a whole from Washington, D.C.--is an 
     improvement on the democratic federalist system created by 
     the Constitution. Yet that is the form of government we now 
     have.
       The claim that the Court's rulings of unconstitutionality 
     are mandates of the Constitution, or anything more than 
     policy preferences of a majority of the justices, is false. 
     Rule by judges is in violation, not enforcement, of the 
     Constitution. Ending it requires nothing more complex than 
     insistence that the Court's rulings of unconstitutionality 
     should be based on the Constitution--which assigns ``All 
     legislative Power'' to Congress--in fact as well as name.
                                 ______
                                 

               [From the Washington Post, June 10, 2005]

                      From Thomas, Original Views

                        (By Charles Krauthammer)

       Justice Thomas: ``Dope is cool.''
       Justice Scalia: ``Let the cancer patients suffer.''
       If the headline writers characterized Supreme Court 
     decisions the way many senators and most activists and 
     lobbying groups do, that is how they would have characterized 
     the Supreme Court decision this week on the use of medical 
     marijuana in California. It was ruled illegal because the 
     federal law prohibiting it supersedes the state law 
     permitting it. Scalia agreed with the decision. Thomas 
     dissented.
       In our current, corrupted debates about the judges, you 
     hear only about results. Priscilla Owen, we were told (by the 
     Alliance for Justice), ``routinely backs corporations against 
     worker and consumer protections.'' Well, in what 
     circumstances? In adjudicating what claims? Under what 
     constitutional doctrine?
       The real question is never what judges decide but how they 
     decide it. The Scalia-Thomas argument was not about concern 
     for cancer patients, the utility of medical marijuana or the 
     latitude individuals should have regarding what they ingest.
       It was about what the Constitution's commerce clause 
     permits and, even more abstractly, who decides what the 
     commerce clause permits. To simplify only slightly, Antonin 
     Scalia says: Supreme Court precedent. Clarence Thomas says: 
     the Founders, as best we can interpret their original intent.
       The Scalia opinion (concurring with the majority opinion) 
     appeals to dozens of precedents over the past 70 years under 
     which the commerce clause was vastly expanded to allow the 
     federal government to regulate what had, by the time of the 
     New Deal, become a highly industrialized country with a 
     highly nationalized economy.
       Thomas's dissent refuses to bow to such 20th-century 
     innovations. While Scalia's opinion is studded with 
     precedents, Thomas pulls out founding-era dictionaries (plus 
     Madison's notes from the Constitutional Convention, the 
     Federalist Papers and the ratification debates) to understand 
     what the word commerce meant then. And it meant only ``trade 
     or exchange'' (as distinct from manufacture) and not, as we 
     use the term today, economic activity in general. By this 
     understanding, the federal government had no business 
     whatsoever regulating privately and medicinally grown 
     marijuana.
       This is constitutional ``originalism'' in pure form. Its 
     attractiveness is that it imposes discipline on the courts. 
     It gives them a clear and empirically verifiable 
     understanding of constitutional text--a finite boundary 
     beyond which even judges with airs must not go.
       And if conditions change and parts of the originalist 
     Constitution become obsolete, amend it. Democratically. We 
     have added 17 amendments since the Bill of Rights. Amending 
     is not a job for judges.
       The position represented by Scalia's argument in this case 
     is less ``conservative.'' It recognizes that decades of 
     precedent (which might have, at first, taken constitutional 
     liberties) become so ingrained in the life of the country, 
     and so accepted as part of the understanding of the modern 
     Constitution, that it is simply too revolutionary, too 
     legally and societally disruptive, to return to an original 
     understanding long abandoned.
       And there is yet another view. With Thomas's originalism at 
     one end of the spectrum and Scalia's originalism tempered by 
     precedent--rolling originalism, as it were--in the middle, 
     there is a third notion, championed most explicitly by 
     Justice Stephen Breyer, that the Constitution is a living 
     document and that the role of the court is to interpret and 
     reinterpret it continually in the light of new ideas and new 
     norms.
       This is what our debate about judges should be about. 
     Instead, it constantly degenerates into arguments about 
     results.
       Two years ago, Thomas (and Scalia and William Rehnquist) 
     dissented from the court's decision to invalidate a Texas law 
     that criminalized sodomy. Thomas explicitly wrote, ``If I 
     were a member of the Texas Legislature, I would vote to 
     repeal it.'' However, since he is a judge and not a 
     legislator, he could find no principled way to use a 
     Constitution that is silent on this issue to strike down the 
     law. No matter. If Thomas were nominated tomorrow for chief 
     justice you can be sure that some liberal activists would 
     immediately issue a news release citing Thomas's ``hostility 
     to homosexual rights.''
       And they will undoubtedly cite previous commerce clause 
     cases--Thomas joining the majority of the court in striking 
     down the Gun Free School Zones Act and parts of the Violence 
     Against Women Act--to show Thomas's ``hostility to women's 
     rights and gun-free schools.''
       I hope President Bush nominates Thomas to succeed Rehnquist 
     as chief justice, not just because honoring an originalist 
     would be an important counterweight to the irresistible 
     modern impulse to legislate from the bench but, perhaps more 
     importantly, to expose the idiocy of the attacks on Thomas 
     that will inevitably be results-oriented: hostile toward 
     women, opposed to gun-free schools . . . and pro-marijuana?

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