[Congressional Record (Bound Edition), Volume 151 (2005), Part 4]
[Senate]
[Pages 5514-5518]
[From the U.S. Government Publishing Office, www.gpo.gov]




                             FEDERAL COURTS

  Mr. CORNYN. Mr. President, I wanted to talk a little bit about our 
courts, and specifically our Federal courts, and even more specifically 
the United States Supreme Court.
  Before I start, let me just say I have the greatest respect for our 
judiciary, the men and women who wear black robes--whether it is on a 
municipal court or a county court or a district court like I served on 
in San Antonio, Bexar County, TX, for 6 years, or those who work on 
appellate courts, whether State or Federal, like I did on the Texas 
Supreme Court for 7 years.
  For 13 years of my professional life, I have worn a black robe, 
judging cases, first presiding over the jury trials, and coming to have 
a great deal of respect not just for those judges but for men and women 
who serve on juries and decide hard cases, cases which, perhaps, they 
would prefer not have to sit in judgment of, some involving even the 
death penalty.
  I don't want anyone to misunderstood what I say as being a blanket 
criticism of either the judiciary or the U.S. Supreme Court, in 
particular. From my own experience, judges, although they have 
important jobs to do, are no different than you and I. They are mere 
mortals, subject to the same flashes of mediocrity, sometimes making 
mistakes, and sometimes displaying flights of brilliance. These are 
not, as some people have suggested, high priests able to discern great 
truths that you and I are unable to figure out. They are generally very 
intelligent, with outstanding educational pedigrees, but no one has 
agreed that judges, particularly Federal judges, can be or should be a 
law unto themselves.
  Federal judges are appointed subject to advice and consent provisions 
of the Constitution for a lifetime. They do not run for election. They 
do not have to raise money as do other politicians. I know those who do 
envy them that. But the idea is they are supposed to use that 
independence in order to be impartial umpires of the law--it is called 
balls and strikes--and they should use that independence that has been 
given to them in order to resist politics, in order to resist those who 
would suggest that in order to be popular you must subscribe to a 
particular way of thinking or a particular social or political or 
ideological agenda.

[[Page 5515]]

  Given that framework the Founding Fathers agreed was so important and 
that I know we all agree is important today to preserve that 
independence so as to preserve that judicial function, it causes a lot 
of people, including me, great distress to see judges use the authority 
they have been given to make raw political or ideological decisions. No 
one, including those judges, including the judges on the U.S. Supreme 
Court, should be surprised if one of us stands up and objects.
  I make clear I object to some of the decisionmaking process occurring 
at the U.S. Supreme Court today and now. So far as 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, it 
has led to increasing divisiveness and bitterness of our confirmation 
fights that is a very current problem this body faces. It has generated 
a lack of respect for judges generally. Why should people respect a 
judge for making a policy decision born out of an ideological 
conviction any more than they would respect or deny themselves the 
opportunity to disagree if that decision were made by an elected 
representative? The difference is they can throw the rascal out and we 
are sometimes perceived as the rascal if they do not like the decisions 
made, but they cannot vote against a judge, because judges are not 
elected. They serve for a lifetime on the Federal bench.
  The increasing politicization of the judicial decisionmaking process 
at the highest levels of our judiciary has bred a lack of respect for 
some of the people who wear the robe. That is a national tragedy.
  Finally, I don't know if there is a cause-and-effect connection, but 
we have seen some recent episodes of courthouse violence in this 
country--certainly nothing new; we seem to have run through a spate of 
courthouse violence recently that has been on the news. I wonder 
whether there may be some connection between the perception in some 
quarters on some occasions where judges are making political decisions 
yet are unaccountable to the public, that it builds and builds to the 
point where some people engage in violence, certainly without any 
justification, but that is a concern I have that I wanted to share.
  We all are students of history in this Senate, we all have been 
elected to other bodies and other offices, and we are all familiar with 
the founding documents, the Declaration of Independence, the 
Constitution itself. We are familiar with the Federalist Papers that 
were written in an effort to get the Constitution ratified in New York 
State. Alexander Hamilton, apropos of what I will talk about, authored 
a series of essays in the Federalist Papers that opine that the 
judicial branch would be what he called the ``least dangerous branch of 
government.'' He pointed out that the judiciary lacked the power of the 
executive branch, the White House, for example, in the Federal 
Government and the political passions of the legislature. In other 
words, the Congress. Its sole purpose--that is, the Federal judiciary's 
sole purpose--was to objectively interpret and apply the laws of the 
land and in such a role its job would be limited.
  Let me explain perhaps in greater detail why I take my colleagues' 
time to criticize some of the decisionmaking being made by some Federal 
courts in some cases. This is not a blanket condemnation. I hope I have 
made it clear I respect the men and women who wear the robe, but having 
been a judge myself I can state that part of the job of a judge is to 
criticize the reasoning and the justification for a particular 
judgment. I certainly did that daily as a state supreme court justice. 
And I might add that people felt free to criticize my decisions, my 
reasoning and justification for the judgments I would render. That is 
part of the give and take that goes into this. I make clear my respect 
generally for the Federal judiciary, including the U.S. Supreme Court.
  I am troubled when I read decisions such as Roper v. Simmons. This is 
a recent decision from March 1, 2005. Let me state what that case was 
about. This was a case involving Christopher Simmons. Christopher 
Simmons was seven months shy of his 18th birthday when he murdered 
Shirley Crook. This is a murder he planned to commit. Before committing 
the crime, this 17-year-old who was 7 months shy of his 18th birthday, 
encouraged his friends to join him, assuring them that they could ``get 
away with it,'' because they were minors. Christopher Simmons and his 
cohorts broke into the home of an innocent woman, bound her with duct 
tape and electrical wire, and then threw her off a bridge, alive and 
conscious, resulting in her subsequent death.
  Those facts led a jury in Missouri, using the law in Missouri that 
the people of Missouri had chosen for themselves through their elected 
representatives, to convict him of capital murder and to sentence him 
to death.
  Well, this 17-year-old boy, or young man I guess is what I would call 
him, Christopher Simmons, challenged that jury verdict and that 
conviction all the way through the State courts of Missouri and all the 
way to the U.S. Supreme Court. And the United States Supreme Court, on 
March 1, 2005, held that Christopher Simmons or any other person in the 
United States of America who is under the age of 18 who commits such a 
heinous and premeditated and calculated murder cannot be given the 
death penalty because it violates the U.S. Constitution.
  In so holding, the U.S. Supreme Court said: We are no longer going to 
leave this in the hands of jurors. We do not trust jurors. We are no 
longer going to leave this up to the elected representatives of the 
people of the respective States, even though 20 States, including 
Missouri, have the possibility at least of the death penalty being 
assessed in the most aggravated types of cases, involving the most 
heinous crimes, against someone who is not yet 18.
  This is how the Court decided to do that. First, it might be of 
interest to my colleagues that 15 years earlier the same U.S. Supreme 
Court, sitting in Washington, across the street from this Capitol where 
we are standing today, held just the opposite. Fifteen years ago, the 
U.S. Supreme Court held that under appropriate circumstances, given the 
proper safeguards, in the worst cases involving the most depraved and 
premeditated conduct, a jury could constitutionally convict someone of 
capital murder and sentence them to the death penalty. But 15 years 
later, on March 1, they said what was constitutional the day before was 
no longer constitutional, wiping 20 States' laws off the books and 
reversing this death penalty conviction for Christopher Simmons.
  What I want to focus on now is the reasoning that Justice Anthony 
Kennedy, writing for the U.S. Supreme Court, in a 5-to-4 decision, used 
to reach that conclusion.
  First, Justice Kennedy adopted a test for determining whether this 
death penalty conviction was constitutional. This ought to give you 
some indication of the problems we have with the Supreme Court as a 
policymaker with no fixed standards or objective standards by which to 
determine its decisions to make its judgments. The Court embraced a 
test that it had adopted earlier referring to the ``evolving standards 
of decency that mark the progress of a maturing society.'' Let me 
repeat that. The test they used was the ``evolving standards of decency 
that mark the progress of a maturing society.''
  I would think any person of reasonable intelligence, listening to 
what I am saying, would say: What was that? How do you determine those 
``evolving standards''? And if they are one way on one day, how do they 
evolve to be something different the next day? And what is a ``maturing 
society''? How do we determine whether society has matured? I think 
people would be justified in asking: Isn't that fancy window dressing 
for a preordained conclusion? I will let them decide.
  Well, it does not get much better because then the Court, in order to 
determine whether the facts met that standard, such as that this death 
penalty could not stand, or these laws in 20 States cannot stand, 
looked to what

[[Page 5516]]

they called an ``emerging consensus.'' Well, any student of high school 
civics knows we have a Federal system, and the national Government does 
not dictate to the State governments all aspects of criminal law. In 
fact, most criminal law is decided in State courts in the first place.
  Nevertheless, the Supreme Court of the United States, in a 5-to-4 
decision, looked for an ``emerging consensus'' and in the process wiped 
20 States' laws off the books. I will not go into the details of how 
they found a consensus, but suffice it to say it ought to be that in a 
nation comprised of 50 separate sovereign State governments, where 20 
States disagree with the Court on its decision that wipes those 20 
States' courts laws off the books, it can hardly be called a consensus, 
if language is to have any meaning.
  Secondly, the Court said: We will also look to our own decisions, our 
own judgment over the propriety of this law. In other words, they are 
going to decide because they can, because basically their decisions are 
not appealable, and there is nowhere else to go if they decide this law 
is unconstitutional. The American people, the people of Missouri, the 
people who support, under limited circumstances, under appropriate 
checks and balances, the death penalty for people who commit heinous 
crimes under the age of 18 are simply out of luck; this is the end of 
the line.
  Well, finally--and this is the part I want to conclude on and speak 
on for a few minutes--the Court demonstrated a disconcerting tendency 
to rely on the laws of foreign governments and even treaties in the 
application and enforcement of U.S. law. This is a trend that did not 
start with the Roper case, but I did want to mention it in that 
connection.
  But if the U.S. Supreme Court is not going to look to the laws of the 
United States, including the fundamental law of the United States, 
which is the Constitution, but interpreting what is and is not 
constitutional under the U.S. Constitution by looking at what foreign 
governments and foreign laws have to say about that same issue, I fear 
that bit by bit and case by case the American people are slowly losing 
control over the meaning of our laws and the Constitution itself. If 
this trend continues, foreign governments may have a say in what our 
laws and our Constitution mean and what our policies in America should 
be.
  Let me digress a second to say this is as current as the daily news. 
As a matter of fact, I saw in the New York Times on April 2 an article 
concerning Justice Ginsburg, a member of that five-member majority in 
the Roper case. The headline is: ``Justice Ginsburg Backs Value of 
Foreign Law.'' Reading from this story, written by Anne Kornblut, it 
says:

       In her speech, Justice Ginsburg criticized the resolutions 
     in Congress and the spirit in which they were written.

  She is referring to a resolution I have filed, and I sent out a 
``dear colleague'' today expressing concerns about this issue. But she 
said:

       Although I doubt the resolutions will pass this Congress--

  I don't know where she gets her information. I think there is a lot 
of positive sentiment in favor of what the resolution says, and I will 
talk about that in a minute.

       Although I doubt the resolutions will pass this Congress, 
     it is disquieting that they have attracted sizable support.

  I am a little surprised that a sitting U.S. Supreme Court Justice 
would engage in a debate about a current matter, which has yet to be 
decided by the Senate, which is a resolution expressing concern about 
the use of foreign laws and treaties to interpret what the U.S. 
Constitution should mean. I am a little surprised by it.
  In a series of cases over the past few years our courts have begun to 
tell us that our criminal laws and our criminal policies are informed 
not just by our Constitution and by the policy preferences and 
legislative enactments of the American people through their elected 
representatives, but also by the rulings of foreign courts. I 
understand it is hard to believe, and most people listening to what I 
am saying are asking themselves: Could this be true? Is it possible? I 
know it is hard to believe, but in a series of recent cases, including 
the Roper case, the U.S. Supreme Court has actually rejected its own 
prior decisions in part because a foreign government or court has 
expressed disagreement with the conclusion they had reached.
  Until recently the U.S. Supreme Court had long held that under 
appropriate safeguards and procedures, the death penalty may be imposed 
by the States regardless of the IQ of the perpetrator. The Court had 
traditionally left this issue untouched as a matter for the American 
people and each of their States to decide, as the Court said in a case 
called Penry V. Lynaugh in 1989. Yet because some foreign governments 
had frowned upon that ruling, the U.S. has now seen fit to take that 
issue away from the American people entirely. In 2002, in a case called 
Atkins v. Virginia, the U.S. Supreme Court held that the Commonwealth 
of Virginia could no longer apply its criminal justice system and its 
death penalty to an individual who had been duly convicted of 
abduction, armed robbery, and capital murder because of the testimony 
that the defendant was mildly mentally retarded. The reason given for 
this reversal of the Court's position that it had taken in 1989 to 
2002? In part it was because the Court was concerned about ``the world 
community'' and the views of the European Union.
  Take another example. The U.S. Supreme Court had long held that the 
American people in each of the States have the discretion to decide 
what kinds of conduct that have long been considered immoral under 
longstanding legal traditions should or should not remain illegal. In 
Bowers v. Hardwick in 1986, the Court held that it is up to the 
American people to decide whether criminal laws against sodomy should 
be continued or abandoned. Yet once again because foreign governments 
have frowned upon that ruling, the U.S. Supreme Court saw fit in 2003, 
in Lawrence v. Texas, to hold that no State's criminal justice system 
or its criminal justice laws could be written in a way to reflect the 
moral convictions and judgments of their people.
  The reason given for this reversal from 1986 to 2002? This time the 
Court explained that it was concerned about the European Court of Human 
Rights and the European Convention on Human Rights.
  I have already mentioned the case of Roper v. Simmons. But most 
recently, on March 28, the U.S. Supreme Court heard oral arguments in a 
case that will consider whether foreign nationals duly convicted of the 
most heinous crimes will nevertheless be entitled to a new trial for 
reasons that those individuals did not even bother to bring up during 
their trial. As in the previous examples, the Supreme Court has already 
answered this issue but decided to revisit it once again. In 1998, in 
Breard v. Green, the Court made clear that criminal defendants, like 
all parties in lawsuits, may not sit on their rights and must bring 
them up at the time the case is going on or be prohibited from raising 
those issues later on, perhaps even years later. That is a basic 
principle of our legal system. In this case, the Court has decided to 
revisit whether an accused who happens to be a foreign national, 
subject to the Vienna Convention on Consular Relations, should be 
treated differently from any other litigant in our civil litigation 
systems and in State and Federal courts or in the Federal system 
reviewing State criminal justice provisions.
  Even this basic principle of American law may soon be reversed. Many 
legal experts predict that in the upcoming case of Medilline v. Dretke, 
the Court may overturn itself again for no other reason than that the 
International Court of Justice happens to disagree with our 
longstanding laws and legal principles. This particular case involves 
the State of Texas. I have filed an amicus brief, a friend of the court 
brief, in that decision, asking the Court to allow the people of Texas 
to determine their own criminal laws and policies consistent with the 
U.S. States Constitution and not subject to the veto of the Vienna 
Convention on Consular Rights or the decision of some international 
court.

[[Page 5517]]

  There is a serious risk, however, that the Court will ignore Texas 
law, will ignore U.S. law, will reverse itself, and decide in effect 
that the decisions of the U.S. Supreme Court can be overruled by the 
International Court of Justice.
  I won't dwell on this any longer, but suffice it to say there are 
other examples and other decisions where we see Supreme Court Justices 
citing legal opinions from foreign courts across the globe as part of 
the justification for their decisions interpreting the U.S. 
Constitution. These decisions, these legal opinions from foreign courts 
range from countries such as India, Jamaica, Zimbabwe, and the list 
goes on and on.
  I am concerned about this trend. Step by step, with each case where 
this occurs, the American people may be losing their ability to 
determine what their laws should be, losing control in part due to the 
opinions of foreign courts and foreign governments. If this happens to 
criminal law, it can also spread to other areas of our Government and 
our sovereignty. How about our economic policy, foreign policy? How 
about our decisions about our own security?
  Most Americans would be disturbed if we gave foreign governments the 
power to tell us what our Constitution means. Our Founding Fathers 
fought the Revolutionary War precisely to stop foreign governments--in 
this case, Great Britain--from telling us what our laws should be or 
what the rules should be by which we would be governed. In fact, ending 
foreign control over American law was one of the very reasons given for 
our War of Independence.
  The Declaration of Independence itself specifically complains that 
the American Revolution was justified in part because King George ``has 
combined with others to subject us to a jurisdiction foreign to our 
Constitution and unacknowledged by our laws.''
  After a long and bloody revolution, we earned the right at last to be 
free of such foreign control. Rather, it was we the people of the 
United States who then ordained and established a Constitution of the 
United States and our predecessors, our forefathers, specifically 
included a mechanism by which we the people of the United States could 
change it by amendment, if necessary.
  Of course, every judge who serves on a Federal court swears to an 
oath to ``faithfully and impartially discharge and perform all the 
duties incumbent upon me . . . under the Constitution and laws of the 
United States, so help me God.''
  As you can tell, I am concerned about this trend. I am concerned that 
this trend may reflect a growing distrust amongst legal elites--not 
only a distrust of our constitutional democracy, but a distrust of the 
American people and America itself.
  As every high school civics student knows, the job of a judge is 
pretty straightforward. Judges are supposed to follow the law, not 
rewrite it. Judges are supposed to enforce and apply political 
decisions that are made in Congress and that are signed into law by the 
President of the United States. Judges are not supposed to make those 
decisions or substitute their own judgments or those political 
judgments hashed out in the legislative process in this body and this 
Capitol. The job of a judge is to read and obey the words contained in 
our laws and in our judicial precedents--not the laws and precedents of 
foreign governments, which have no authority over our Nation or the 
American people.
  I am concerned that some judges who simply don't like our laws--and 
they don't like the decisions made by Americans through their elected 
representatives here about what those laws should be--are using this as 
another way to justify their decision to overreach. So it appears they 
would rather rewrite the law from the bench. What is especially 
disconcerting is that some judges today may be departing so far from 
American law, from American principles, and from American traditions 
that the only way they can justify their rulings is to cite the law of 
foreign countries, foreign governments, and foreign cultures, because 
there is nothing left for them to cite for support in this country.
  Citing foreign law in order to overrule U.S. policy offends our 
democracy because foreign lawmaking is obviously in no way accountable 
to the American people. Here again--and I started out by saying I am 
not condemning all Federal judges; I have great respect for the Federal 
judiciary--I am not condemning international law. Obviously, there is a 
way by which international law can apply to the United States, and that 
is through the treaty process, which is, of course, subject to 
ratification by the U.S. Congress.
  There is an important role for international law in our system, but 
it is a role that belongs to the American people through the political 
branches--the Congress and the President--to decide what that role 
should be and indeed what that law should be; it is not a role given to 
our courts. Article I of the U.S. Constitution gives the Congress, not 
the courts, the authority to enact laws punishing ``Offenses against 
the Law of Nations,'' and article II of the Constitution gives the 
President the power to ratify treaties, subject to the advice and 
consent and the approval of two-thirds of the Senate. Yet our courts 
appear to be, in some instances, overruling U.S. law by citing foreign 
law decisions in which the U.S. Congress had no role and citing 
treaties that the President and the U.S. Senate have refused to 
approve.
  To those who might say there is nothing wrong with simply trying to 
bring U.S. laws into consistency with other nations, I say this: This 
is not a good faith attempt to bring U.S. law into global harmony. I 
fear that, in some instances, it is simply an effort to further a 
political or ideological agenda, because the record suggests that this 
sudden interest in foreign law is more ideological than legal; it seems 
selective, not principled.
  U.S. courts are following foreign law, it seems, inconsistently--only 
when needed to achieve a particular outcome that a judge or justice 
happens to desire but that is flatly inconsistent with U.S. law and 
precedent. Many countries, for example, have no exclusionary rule to 
suppress evidence that is otherwise useful and necessary in a criminal 
case. Yet our courts have not abandoned the exclusionary rule in the 
United States, relying upon the greater wisdom and insight of foreign 
courts and foreign nations. I might add that very few countries provide 
abortion on demand. Yet our courts have not abandoned our Nation's 
constitutional jurisprudence on that subject. Four Justices of the 
Supreme Court believe that school choice programs that benefit poor 
urban communities are unconstitutional if parochial schools are 
eligible, even though other countries directly fund religious schools.
  Even more disconcerting than the distrust of our constitutional 
democracy is the distrust of America itself. I would hope that no 
American--and certainly no judge--would ever believe that the citizens 
of foreign countries are always right and that America is always wrong. 
Yet I worry that some judges become more and more interested in 
impressing their peers in foreign judiciaries and foreign governments 
and less interested in simply following the U.S. Constitution and 
American laws. At least one U.S. Supreme Court Justice mentioned 
publicly--and Justice Ginsburg's comments were reported on April 2 in 
the New York Times. A Justice has stated that following foreign rulings 
rather than U.S. rulings ``may create that all important good 
impression,'' and therefore, ``over time, we will rely increasingly . . 
. on international and foreign courts in examining domestic issues.''
  Well, let me conclude by saying I find disturbing this attitude and 
these expressions of support for foreign laws and treaties that we have 
not ratified, particularly when they are used to interpret what the 
U.S. Constitution means. The brave men and women of our Armed Forces 
are putting their lives on the line in order to champion freedom and 
democracy, not just for the American people but for people all around 
the world. America today is the world's leading champion of freedom and 
democracy. I raise this issue, and I

[[Page 5518]]

have filed a resolution for the consideration of my colleagues on this 
issue. I speak about it today at some length because I believe this is 
an important matter for the American people to know about and to have a 
chance to speak out on.
  I believe the American people--certainly the people in Texas--do not 
want their courts to make political decisions. They want their courts 
to follow and apply the law as written. I believe the American people 
do not want their courts to follow the precedents of foreign courts. 
They want their courts to follow U.S. laws and U.S. precedents. The 
American people do not want their laws controlled by foreign 
governments. They want their laws controlled by the American 
Government, which serves the American people. The American people do 
not want to see American law and American policy outsourced to foreign 
governments and foreign courts.
  So I have submitted a resolution to give this body the opportunity to 
state for the record that this trend in our courts is wrong and that 
American law should never be reversed or rejected simply because a 
foreign government or a foreign court may disagree with it. This 
resolution is nearly identical to one that has been introduced by my 
colleague in the House, Congressman Tom Feeney. I applaud his 
leadership and efforts in this area, and I hope both the House and 
Senate will come together and follow the footsteps of our Founding 
Fathers, to once again defend our rights as Americans to dictate the 
policies of our Government--informed but never dictated by the 
preferences of any foreign government or tribunal.
  Mr. President, I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Minnesota.

                          ____________________