[Congressional Record Volume 151, Number 167 (Wednesday, December 21, 2005)]
[Senate]
[Pages S14305-S14306]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL PHILOSOPHY

  Mr. HATCH. Mr. President I rise to make a few remarks about a matter 
relating to judicial philosophy that has been discussed by some during 
the course of this year in connection with the public debate over 
Supreme Court vacancies that have occurred this year.
  Some have attempted to create a false conclusion by criticizing a 
school of judicial philosophy sometimes referred to as the 
``constitution in exile''.
  For example, earlier this year, my esteemed colleague from Delaware, 
Senator Biden, who, I understand, teaches constitutional law at the 
University of Delaware, entered into this debate. My friend from 
Delaware specifically asked us to reflect upon the judicial philosophy 
of one of our Nation's most respected Federal appellate judges, Chief 
Judge Douglas Ginsburg of the U.S. Court of Appeals for the District of 
Columbia Circuit.
  I was recently in attendance at the DC Circuit for the formal 
swearing in of Judge Thomas Griffith and was once again impressed with 
the quality of jurists of this extremely important and influential 
court.
  I commend Senator Biden for his support for the nomination of Judge 
Griffith.
  As I will explain, I do take exception to some of the 
characterizations that the former chairman of the Judiciary Committee 
made about the views of Chief Judge Ginsburg.
  The senior Senator from Delaware invited us to ``read Judge 
Ginsburg's ideas about the `Constitution in Exile'. . . [and to] read 
what Judge Ginsburg has written'' about the ``fifth amendment's taking 
clause, the non-delegation doctrine, the 11th amendment, and the 10th 
Amendment.'' Since the Chief Judge of the DC Circuit is one of our 
Nation's finest jurists, I welcomed this opportunity to reacquaint 
myself with his opinions and writings. I was surprised and somewhat 
dismayed, then, to discover that this was such a short assignment.
  Considering the sharp criticism by my Judiciary Committee colleague, 
Senator Biden, of Chief Judge Ginsburg's views as ``radical,'' I was 
taken aback to discover how little he had actually written on the 
specified subjects.
  It is no exaggeration to say that on most of these issues, Judge 
Ginsburg had written nothing of substance.
  That being said, having considered what little he did write on these 
topics, the characterization of his views as ``radical'' is, at best, a 
stretch.
  If the research that I have seen is correct, Chief Judge Ginsburg has 
authored only two opinions that even refer to the takings clause of the 
Constitution. In neither did he decide the takings claim being 
presented.
  In Corporation of Presiding Bishop of the Church of Jesus Christ of 
the Latter-Day Saints v. Hodel, 830 F.2d 374, 381, DC Cir. 1987, Chief 
Judge Ginsburg, writing for the court, noted that ``[t]he question of 
whether courts, as opposed to legislative bodies, can ever `take' 
property in violation of the Fifth Amendment is an interesting and by 
no means a settled issue of law.'' He determined, however, that the 
court did not need to decide this issue. Similarly, in City of Los 
Angeles v. United States Dept. of Transp., 90 F.3d 591, D.C. Cir. 1996, 
unpublished, Chief Judge Ginsburg, writing for the court, determined 
that the takings claims were not ripe for resolution.

  Many of my colleagues have denounced ideological decision-making by 
judges who are eager to promote their own speculative constitutional 
understanding at the expense of the American people's traditional 
views. I actually think that is a fair description of judicial 
activism, and it is clear that Chief Judge Ginsburg has not engaged in 
it. Quite the contrary, in these cases where he declined the 
opportunity to reach for and resolve constitutional questions 
prematurely, he exhibited the moderation and prudence we should expect 
of our judges.
  Similarly, Chief Judge Ginsburg does not appear to have written 
anything of significance on the tenth or eleventh amendments. In the 
one and only case in which he even mentions the tenth amendment, 
Chenoweth v. Clinton, 181 F.3d 112, D.C. Cir. 1999, Chief Judge 
Ginsburg, writing for the court, did not address the merits of the 
claim because the court had determined that the party lacked standing. 
As for the eleventh amendment, Chief Judge Ginsburg's ``radical'' 
contribution was to note, in Brown v. Secretary of Army, 78 F.3d 645, 
653, D.C. Cir. 1996, that a case referred to by the appellant citing 
the eleventh amendment was inapposite to the case before the court. 
This is hardly the controversial statement in support of State 
sovereign immunity one would expect given my colleague's remarks.
  So, as far as I am aware, Chief Judge Ginsburg has not written 
substantively on the tenth amendment, the eleventh amendment, or the 
takings clause. How then can anyone fairly conclude that Chief Judge 
Ginsburg has such radical views about the constitutionally limited 
powers of the national government? Perhaps some are reading between the 
lines and seeing emanations and penumbras that others do not discern.
  The only topic singled out for criticism by my friend from Delaware 
that I could find was, in fact, substantively addressed by Chief Judge 
Ginsburg is the non-delegation doctrine. In a 1995 book review of David 
Schoenbrod's ``Power Without Responsibility'', Chief Judge Ginsburg 
employed the term ``Constitution-in-exile.''
  Apparently some liberal critics of the President's judicial nominees 
have seized on this expression, perhaps in the hope that it will scare 
the American people into fearing some super-secret rightwing led by 
wayward judges.
  Of course, this is nonsense.
  But it is worth noting that the many of the critics who talk today 
about the Constitution-in-exile have completely unmoored that term from 
Chief Justice Ginsburg's original formulation.
  In an article in the journal Regulation, Chief Judge Ginsburg wrote 
the following:

       [F]or 60 years the non-delegation doctrine has existed only 
     as part of the Constitution-in-exile, along with the 
     doctrines of enumerated powers, unconstitutional conditions, 
     and substantive due process, and their textual cousins, the 
     Necessary and Proper, Contracts, Takings, and Commerce 
     Clauses. David Schoenbrod, ``Power Without Responsibility: 
     How Congress Abuses the People Through Delegation,'' 
     Regulation Magazine (1995 No. 1) (Book Review), at 84.

  He went on to explain that, ``The memory of these ancient exiles, 
banished for standing in opposition to unlimited government, is kept 
alive by a few scholars who labor on in the hopes of a restoration, a 
second coming of the Constitution of liberty--even if perhaps not in 
their own lifetimes.'' Id.

  So two sentences equal a judicial scheme to advance substantive 
economic liberty and restrain Federal authority? For a careful reader, 
it is clear that Chief Judge Ginsburg promotes no such agenda. First, 
he was referring only to the non-delegation doctrine, the supposedly 
radical proposition that Congress, not unelected bureaucrats, should be 
responsible for making our laws. And second, Chief Judge Ginsburg was 
writing a book review, and his reference to those ``few scholars'' was 
obviously not a reference to himself because he had not written on this 
subject.
  His point was that the author of the book he was reviewing was 
misguided in thinking that the Supreme Court was likely to put teeth 
back into the non-delegation doctrine. Far from arguing that courts 
should strip Congress of their authority to delegate its lawmaking 
authority, he suggested that it would be more productive to ask 
Congress to change the way it delegates lawmaking authority to 
administrative agencies. Chief Judge Ginsburg was Administrator of 
Information and Regulatory Affairs of the Office of Management and 
Budget during the Reagan administration. This is the office within the 
Executive Office of the President charged with reviewing all Federal 
regulations. So Chief Judge Ginsburg has considerable experience and 
expertise in these matters.
  In the referenced book review, Chief Judge Ginsburg endorses then-
Judge

[[Page S14306]]

Breyer's suggestion that ``[p]roposed regulations, or at least those 
that would impose a burden in excess of a specified amount, say $100 
million, would not take effect unless affirmatively approved by both 
houses of Congress.'' In this regard, I would note that Justice Breyer 
was one of the seminal thinkers in the field of regulatory reform and I 
would recommend that everyone read his 1982 book, ``Regulation and Its 
Reform'' in which he lays out a comprehensive analysis of, and 
suggestions for, regulatory reform.
  In Chief Judge Ginsburg's speech, On Constitutionalism, published in 
the Cato Supreme Court Review in 2003, he articulates much the same 
position, stating that the separation of powers doctrine clearly 
indicates that ``there must be a limit upon the ability of Congress to 
delegate lawmaking functions to the executive branch.'' Id. at 16. That 
is, the Constitution does seem to prohibit legislators from simply 
delegating their constitutional authority to legislate to an executive 
branch agency and then go home. Yet he also notes the Supreme Court's 
failure since the mid 1930's to find any act of Congress a violation of 
the non-delegation doctrine, demonstrating the High Court's reluctance 
to give meaning to the doctrine. So this is the view some have 
characterized as radical, the Constitution assigns the legislative 
power to Congress, and it violates the principle of separation of 
powers to have unlimited delegation of that law-making authority to 
executive branch agencies. Yet because the courts have been reluctant 
to adjudicate these arrangements, any remedy must come through 
political persuasion.
  Chief Judge Ginsburg did join an opinion, the relevant part of which 
was written by another judge, in which the court held that the 
Environmental Protection Agency had interpreted sections of the Clean 
Air Act authorizing the national ambient air quality standards, NAAQS, 
for ozone and particulate matter so loosely as to render them 
unconstitutional delegations of legislative power. See American 
Trucking Ass'n. v. EPA, 175 F.3d 1027, 1034-40, D.C. Cir. 1999. More 
specifically, the court determined that it was unclear what in EPA's 
view was the ``intelligible principle'' the Congress had directed the 
agency to follow and no such principle was apparent to the court on the 
face of the act.

  The court therefore remanded the cases to the EPA so that it could 
detail the principle limiting the agency's discretion. The full DC 
Circuit then denied the EPA's petition for rehearing en banc. See 195 
F.3d 4, DC Cir. 1999. It is true, however, the Supreme Court granted 
the EPA's petition for certiorari and held that the act's delegation of 
authority to the EPA to set the NAAQS at the level ``requisite to 
protect the public health'', although broad, provided an ``intelligible 
principle'' for setting air quality standards and was therefore 
constitutional without further delineation by the agency. Whitman v. 
American Trucking Ass'n, 531 U.S. 457, 473, 2001. But this is hardly 
the first time the Supreme Court overruled an appellate court and, in 
any case, is a pretty thin reed on which to reach a conclusion that the 
lower court decision represented a radical break with constitutional 
jurisprudence.
  I encourage everyone to examine Chief Judge Ginsburg's writings 
pertaining to the takings clause, the non-delegation doctrine, and the 
tenth and eleventh amendments. A fair reading warrants a conclusion 
that there is nothing radical about his reasoning or conclusions. Chief 
Judge Ginsburg's writings on these matters are neither extensive nor 
extreme. Characterizing them as a ``stark departure from current 
constitutional law'' is not justified.
  I also might add that the issue of non-delegation is not as black or 
white as many have come to believe in recent times. Some appear--
including many advocates of the liberal welfare state administered by 
so many Federal agencies--to argue, contrary to the Constitution's 
clear commitment to limited government, that there should be little, if 
any, judicial oversight over congressional actions and claim that even 
modest judicial requirements that Congress act within its 
constitutional authority are radical changes to our law. It seems 
counterintuitive then that these same people argue for an unlimited 
congressional authority to delegate their lawmaking power to another 
branch of Government. On the one hand, Congress is all powerful. On the 
other hand, they can give that power away.
  The record reflects that Chief Judge Ginsburg is a mainstream 
conservative judge, who applies the Constitution faithfully. He is no 
judicial radical. He is one of the most respected judges in the Federal 
judiciary. Suggestions to the contrary are not supported by the facts.

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