By Kirk Victor
National Journal, May 31, 1997
There is anger on Capitol Hill these days. The testiness has nothing to do with Congress's relationship with the Clinton Administration. After all, the legislative and executive branches are on the brink of completing a balanced budget deal.
No, the bile among lawmakers, at least many on the Republican side, is reserved for that other branch of the federal government--the judiciary. In recent months, GOP leaders in the House and the Senate have unleashed a rhetorical barrage at what they see as an out-of-control judiciary. They use their buzz phrase, ``judicial activism,'' to reproach federal judges who, they contend, have all too often engaged in a power grab, usurping legislative powers by creating laws rather than simply interpreting them.
A raft of recent rulings from the federal bench--mostly by Democratic-appointed judges--have invalidated voter-approved initiatives and referenda. This has led critics to conclude that too many judges are all-too-ready to thwart the will of the majority. And some lawmakers are incensed that judges seem increasingly willing to tackle moral and social questions that they are ill-equipped to handle, such as the right to physician- assisted suicide.
``What we are seeing more and more is unelected judges twisting the text, history and structure of the Constitution beyond any intelligible meaning in order to arrogate to themselves the authority to decide virtually any significant issue and to decide it in the way they prefer,'' Senate Judiciary Committee chairman Orrin G. Hatch, R-Utah, said.
That image of an aloof, imperial judiciary disenfranchising the citizenry also has GOP House Members seeing red. ``I think there is a recognition that [federal judges] have unlimited power and it is unaccountable,'' said House Judiciary Committee chairman Henry J. Hyde, R-Ill.
``I don't think judges should just be able to do anything they want to do and not be criticized,'' the Illinois lawmaker added. ``What we are doing is criticizing--we have a right to do it, and we have a duty to do it.''
While most judges are inured to tough criticism, some worry that the bitter attacks may mark a serious breakdown of relations between the two branches. House Majority Whip Tom D. DeLay, R-Texas, created shock waves when he recently suggested that impeachment would be an appropriate weapon against judges who advance personal agendas from the bench and otherwise exceed their authority.
``Tensions are higher than anything I have known, and I have been a judge 25 years,'' Judge Jon O. Newman, chief judge of the U.S. Court of Appeals for the 2nd Circuit, said in an interview.
What gives? Part of the friction between Congress and the judiciary may be inevitable. The Constitution establishes three independent, co-equal branches of government, in which Congress has the authority to establish the judiciary's jurisdiction, size, financing--including judges' pay--and even procedural rules.
But there is a huge distinction between the two branches. Lawmakers must face the voters to retain their jobs. Federal judges, once confirmed, have lifetime tenure and a sizable salary--in excess of $130,000--that the Constitution says can never be reduced. Those features are built into the system in order to insulate judges from political pressures so that they may decide cases without fear of reprisal.
But as judges issue ever-more controversial rulings, Republican frustration over the courts is boiling over. Sen. John D. Ashcroft, R-Mo., chairman of the Judiciary Subcommittee on Constitution, Federalism and Property Rights, who plans hearings on judicial activism, made an impassioned speech about the issue before the Conservative Political Action Committee in March.
``Over the last half-century,'' he said, ``the federal courts have usurped from school boards the power to determine what a child can learn, and removed from the legislatures the ability to establish equality under the law. The courts have made liars of Hamilton and Madison, confirming our forefathers' worst fears--for what the Framers intended to be the weakest branch of government has become the most powerful.''
THE WEAKEST BRANCH
Gilbert S. Merritt, the chief judge of the U.S. Court of Appeals for the 6th Circuit, adamantly disagrees with that assessment. ``The idea that the courts are the strongest branch . . . is absurd on its face,'' he said. ``The executive and legislative branches, with the power of the purse, the sword, and the power of public opinion behind them, are the strongest branches.
``The federal judiciary is not directly accountable, but all this judge-bashing by people like this man and many others is not particularly helpful, although it's nothing new,'' added Merritt, who was appointed to the court by President Carter. ``The Republic is not about to fall.''
Merritt pointed out that others also have taken on the judiciary. For example, President Thomas Jefferson did it when he tried to get Congress to impeach Supreme Court Justice Samuel Chase, with whom he disagreed on a case. In the 1930s, President Franklin D. Roosevelt tried to ``pack'' the Supreme Court by adding Justices who would uphold the New Deal.
Today, GOP lawmakers' determination to stop activists from reaching the bench has resulted in a rare attack on a committee's turf in the Senate. Two Senators--Slade Gorton, R- Wash., and Phil Gramm, R-Texas--advanced proposals that would have buttressed the power of Republican Senators to block President Clinton's nominees to the appellate bench rather than continuing to let the Judiciary Committee alone conduct the vetting process.
The move was a direct shot at Hatch. Despite compiling a strong conservative record during his 20-year Senate career, Hatch was targeted because some colleagues decided he had not been aggressive enough in taking on Clinton's judicial nominees. Ironically, the Utah lawmaker has also been hit in recent months with a burst of criticism from Democrats for dragging his heels on Clinton nominees.
What peeves some conservatives is that since Clinton took office, the Senate has taken roll-call votes on only four of the 204 federal judges that the President has nominated. The others were confirmed with no floor debate.
``Some want [the Gorton and Gramm effort] to be viewed as sending a signal to Hatch,'' Sen. Charles E. Grassley, R-Iowa, chairman of the Judiciary Subcommittee on Administrative Oversight and the Courts and one of the most outspoken critics of activist judges, said in an interview. ``It's very unfair to Hatch--I don't subscribe to it.''
``People want to move slowly in this area,'' Grassley noted, ``to make sure that we maintain the public's confidence that we are not going to overturn 200 years of constitutional process of advice and consent.''
Hatch led the successful fight against the proposals and put the best face on the episode. Gramm and Gorton ``were legitimately trying to find some way of fighting activism,'' he said. ``I plan to ensure that the Judiciary Committee rigorously screens these nominees to detect activist tendencies.''
But the effort to shrink Hatch's power over judicial nominations shows just how contentious the issue has become. The 63-year-old lawmaker, who is unfailingly courteous and affable, found himself in the unusual position of defending his conservative credentials in an interview.
``I will match my conservatism with anybody else on my side, and I think I will stand up rather well,'' he said. ``If you mean, am I extreme?--the answer to that is no. I'm not. I'm proud that I'm not.''
HOSTILITY IN THE HOUSE
Even as the battle over the judicial confirmation process raged in the Senate, the House also rang with shots aimed at activists on the federal bench. The issue picked up steam following DeLay's decision to jump into the fray by raising the specter of impeaching judges in a March interview with editors and reporters of The Washington Times.
``If judges are going to make political decisions, it is within the precedent of this country and the precedent of Congress to impeach them for making political decisions,'' DeLay said.
DeLay's position quickly became a rallying point for activists on the Right who have been increasingly incensed over the spate of rulings striking down ballot referenda that they often support--from a term limits proposition in California to Arizona's vote to make English the official language for state business.
Thomas L. Jipping, the director of the conservative Free Congress Research and Education Foundation's Center for Law & Democracy, has recently written a number of op-ed articles arguing that grounds for impeachment of judges should not be limited to ``high crimes and misdemeanors'' or indictable offenses.
``Activist judges do not simply make decisions someone does not like; they exercise power they do not legitimately possess,'' Jipping recently wrote in The Hill. ``If a willful exercise of illegitimate power is not impeachable, nothing is.''
In January, Jipping also spearheaded the launching of a grass-roots coalition to oppose judicial activism. More than 260 groups and 40 radio and television talk-show hosts have signed on. The effort is clearly aimed at pressuring lawmakers to be more aggressive in reviewing judicial nominees and to be more willing to discipline wayward judges.
``Judicial activism exists in part because Congress refuses to exercise the checks and balances the Founders crafted,'' Jipping wrote in The Hill. ``One of these is impeachment.''
Given their prominence on the issue, DeLay and Jipping became the star witnesses on May 15 at a House hearing of the Judiciary Subcommittee on Courts and Intellectual Property to explore judicial misconduct and discipline.
Expecting plenty of fireworks, more than the usual number of reporters filed into the hearing room. After all, the critics of the judiciary would be expected to spar with Rep. Barney Frank, D-Mass., the subcommittee's ranking minority Member and one of the House's fiercest in-your-face debaters, as well as with Rep. John Conyers Jr., D-Mich., who, like Frank, is one of the chamber's most ardent liberals.
But most of the reporters and other spectators left well before the proceedings were over, having watched as the expected bang turned out to be something closer to a bust.
Jipping became strangely tongue-tied when Frank bore down on him with rapid-fire questions demanding that he name a judge who ought to be impeached. Jipping stammered and said that he had not formulated a specific standard and finally offered one name-- Judge Stephen Reinhardt of the 9th Circuit Court of Appeals. Reinhardt has been described in The Weekly Standard as ``the country's most audacious liberal judge'' as well as ``one of the most overturned judges in history.''
Yet when Frank pressed Jipping, the conservative activist backed down from saying the appellate judge should be impeached. Instead, he said that Reinhardt's decisions ``ought to be examined'' and that he would be ``glad to look at everything that [Reinhardt] has written.''
Reminding Jipping that he was the expert on this issue, Frank summed up, ``I have to say to you, Mr. Jipping, that I am massively unimpressed with this waving around the impeachment [threat], but then you can't tell me a single judge who you think should be impeached.
``This is more in fact an ideological expression of unhappiness than a factual [statement],'' Frank concluded. ``If nobody has met your standard, then I don't think we have too many impeachable people out there.''
Neither did DeLay mix it up much. He arrived late, gave a statement and left. The Texas lawmaker cited several examples of ``judicial imperialism,'' but also said, ``I am not suggesting that impeachment be used for partisan purposes, but when judges exercise power not delegated to them by the Constitution, impeachment is a proper tool.''
It was an inauspicious start for advocates of impeachment, but in the hallway outside the hearing room, DeLay made clear that he is determined to keep plugging away on the issue. He told a knot of reporters that he and other lawmakers were busily taking names of judges who have acted beyond their authority.
``We have a whole big file cabinet full [of names],'' DeLay said. ``We are receiving nominations from all across the country of judges that could be prime candidates for the first impeachment. The first case that we bring has to be a solid case.
``I want to bring one to prove my point and I want to make sure that one sticks,'' he added. ``We want one [in which] it is obvious that he violated his oath of office to uphold the Constitution of the United States. That is the criterion. If he tries to legislate and goes beyond what the Constitution allows the judiciary to do, that is a great case.'' (See box, this page.)
Despite the bold talk, even one impeachment proceeding seems a long shot. Since 1796, the House has tried and impeached 11 federal judges, seven of whom were subsequently convicted by the Senate, according to the Administrative Office of the U.S. Courts. Today, Republican Senate leaders show little stomach for the protracted procedure, which requires a two-thirds vote in the Senate following a majority vote in the House.
``I've been through two impeachment trials of judges for criminal activities and the like, and that is not something that we are going to spend the [required] amount of time on,'' Gorton said in an interview. ``We wouldn't have time to do anything else.''
OVERHAULING THE JUDICIARY
Despite the uphill battle awaiting proponents of judicial impeachment, there is still much ferment on the Right for a dramatic--liberals view it as draconian--overhaul of the judiciary's role. The Right's rationale for such a move is that the federal courts' willingness to rule on highly charged issues--from abortion to term limits, gay rights to school integration--has made judges appear to be just another set of political actors.
``The more judges involve themselves in what most people think are policy decisions, the more unhappiness they create among elected officeholders of both parties,'' Gorton said.
As if they had heard such criticism, several Supreme Court Justices seemed to acknowledge during oral argument in a case this year that certain decisions involving life and death might be beyond their ken. The question presented to the court was whether the terminally ill have a constitutional right to doctor-assisted suicide.
``Is this ever a proper question for courts as opposed to legislators?'' asked Justice Ruth Bader Ginsburg. Echoing her point, Justice David H. Souter asked one of the lawyers, ``Why shouldn't we conclude that as an institution, we are not in a position to make the judgment you want us to make?''
But this solicitude for the prerogatives of the legislature is unusual, critics say. Listen, for instance, to Robert H. Bork, the former appellate judge whom the Senate rancorously rejected for a Supreme Court seat in 1987, setting the tone for today's acrimony over the confirmation process. In a harsh indictment of judiciary intrusiveness into matters properly left to the other branches, Bork has argued for sweeping new checks on the courts.
In his 1996 book, Slouching Towards Gomorrah, Bork argues that there appears to be only one way to restore the federal courts to their proper role: The judiciary's decisions should be subject to being overruled by a majority vote of both the House and the Senate. That would require a constitutional amendment-- and provoke a fierce battle.
Elliot Mincberg, legal director of People for the American Way, a liberal advocacy group, denounced the proposal as contrary ``to a fundamental tenet upon which our entire democracy was built.
``By using such emotionally laden phrases as `judicial misconduct' and `judicial activism' to attack the federal courts,'' Mincberg added, ``conservatives are working to erode the great American institution of an independent judiciary.''
Bork realized that his proposal would be branded ``extremist,'' but he said it is the only way to rein in a ``despotic'' judiciary. ``Harsh criticism by political leaders of outrageous judicial decisions is a legitimate and necessary response,'' Bork wrote, but he added that it ``will not be enough to restore the proper balance between the branches of government and between the states and the federal courts.''
But Sen. Patrick J. Leahy of Vermont, the senior Democrat on the Judiciary Committee, countered that the judiciary acts to protect the public and argued that there is no reason to disturb that role. ``I would think that anybody would want an independent judiciary if they really fear the possibility of the tyranny of the central government,'' he said in an interview.
And Bork's approach appears to be a political nonstarter. If impeachment of federal judges is a long shot even though it is a procedure embodied in the Constitution, then Bork's far bolder proposal has even less of a chance of ever happening.
By contrast, Rep. Hyde is pursuing a more modest effort to limit federal judges' power. He introduced legislation in April that he said was designed to address specific concerns without interfering with ongoing cases or preventing the courts from reviewing the constitutionality of Congress's laws.
The measure's most controversial provisions include: any challenge to a statewide referendum will be referred to a three- judge district court panel rather than to a single judge; each party to a civil case may demand, once during the case, that another judge be assigned to the case; and a complaint against a judge may be heard in an appeals court circuit other than the one in which she or he sits. The bill also would prohibit judges from imposing taxes to enforce a law or ruling, and would let a litigant file an appeal immediately after a class action is certified.
Chief Judge Henry A. Politz of the U.S. Court of Appeals for the 5th Circuit, who testified on May 14 at the House Judiciary subcommittee hearing, said that there were shortcomings in these proposals, including excessive costs and an inefficient use of judicial resources or, in the case of an appeal of a class action certification, an idea that is already being reviewed in the judiciary's internal rule-making process.
If there is judicial overreaching, Judge Merritt added in an interview, it simply reflects Congress's tendency to pass vague laws. ``In a majority of the areas of law, Congress is saying that the pressures on them are such that they are going to compromise on legislation by enacting very broad standards,'' he said.
Merritt's point was echoed by Roger Pilon, a senior fellow and director of the Center for Constitutional Studies at the libertarian Cato Institute. ``When the law is unclear or inconsistent, judicial responsibility may be difficult to achieve--and `activism' inevitable,'' he told the subcommittee. ``In the end, if we are unhappy with the role the judiciary sometimes plays in this setting, it may be that we need to look first to the material we give judges to work with---the reams of statutory material we have enacted.''
Rep. Frank has a different take. Critics of the judiciary are ``grossly exaggerating'' its role, he said. ``Nothing the courts are doing today remotely approaches the impact of the Supreme Court and other courts in the 1930s and 1950s, when they were blocking economic regulation and ending segregation.''
As for complaints about judges' invalidating ballot initiatives, Frank argued that ``the hypocrisy there is pretty thick.'' He noted, for example, that District Court Judge Thelton E. Henderson came under intense criticism for blocking the recent initiative in California banning the state's use of racial preferences--and then the 9th Circuit overruled him. ``The notion that we must act promptly to prevent this judicial tyranny is just bullshit--the man issued an injunction, and within a short period he was overruled,'' Frank said.
Calling the conservatives who are riled by judges' throwing out ballot initiatives ``a bunch of hypocritical phonies,'' Frank pointed to the federal judge in Oregon who overturned an initiative that allowed physician-assisted suicide. ``Did you see any right-wing objections?'' he asked.
To those who say they are concerned about judicial activism, Frank pointed to the ``outrageous decision'' in New York by District Court Judge John Sprizzo, acquitting two men who illegally blocked an abortion clinic, because they acted out of religious conscience.
``There is no neutral principle here,'' Frank concluded. ``They are not opposed to judicial activism--they are opposed to opinions that they are opposed to.''
Maybe so, but lawmakers are increasingly comfortable not only in second-guessing decisions from the federal bench, but in actually passing legislation to address court procedures. This year, when a federal court barred victims of the Oklahoma City bombing case from attending the trial proceedings if they planned to testify in the sentencing phase of the case, Congress passed the Victim Allocation Clarification Act to give them--and other victims--explicit rights to attend federal trials.
As conservative lawmakers step up their scrutiny of judicial nominees and take aim at what they view as ill-conceived rulings, judges have been put on notice. The days of deference to the courts are over.