[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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