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Testimony of Thomas L. Jipping, M.A., J.D. Director, Judicial Selection Monitoring Project Before the Senate Judiciary Subcommittee on the Constitution July 29, 1997

Mr. Chairman and members of the Committee, I am grateful for the opportunity to contribute to this very important discussion.

A growing number of Americans believe that judicial activism is a very real and very serious problem and that something must be done about it. This morning each of you received a letter signed by 100 national and state grassroots organizations pledging to "promote judicial restraint and fight judicial activism with whatever tools and resources are legitimately at our disposal." This follows a similar letter each Senator received six months ago signed by 260 grassroots organizations. By the end of the year you will hear the same message from at least 100 more organizations around the country. Mr. Chairman, if possible I would like to submit these letters for the record.

America’s founders separated and limited government power and provided various checks and balances for keeping the system in balance. Judicial activism represents a system out of balance and, therefore, restoring that balance requires restoring what America’s founders established. Judicial power has grown exponentially because Congress has not used the tools already at its disposal for checking that power.

First, America’s founders provided for selecting judges who believe in a more restrained, balanced role for themselves. The current process does not help identify nominees who will likely be judicial activists. Only one badly phrased question out of 30 on the nominees’ questionnaire addresses this vital issue. In most hearings, nominees outnumber Senators by two or three to one; virtually no substantive questions, and certainly no follow-up questions, are asked to probe a nominee’s judicial philosophy; and little attention is paid to a nominee’s already existing record. Only 5 of the 208 judges President Clinton had appointed has even been the subject of a roll call vote. You will not find what you are not looking for; this is a process geared toward confirming nominees, not weeding out unqualified nominees including judicial activists.

Second, America’s founders provided for legislative tools. First, under Article III, Section 2, of the Constitution, Congress can regulate the appellate jurisdiction of the federal courts. Second, Congress can also change the procedures for how judges exercise their authority in categories of cases. For example, Congressman Henry Hyde has a bill to require a three-judge panel to consider constitutional challenges to state referenda enacted by the voters. Hearings before the House Judiciary Subcommittee on the Constitution revealed the need to consider requiring that habeas corpus petitions be assigned to judges randomly in the same manner that trials are assigned. Third, Congress can create, re-arrange, and abolish judicial positions. We applaud Senator Charles Grassley’s leadership in addressing this issue. Fourth, Congress can simply stop giving federal judges so much to do in the first place. The rejection of the constitutional separation between the federal and state governments and the federalizing of crimes and other matters pushes more and more issues into federal courts. Fifth, Congress can stop the abuse of the legal process by grantees of the Legal Services Corporation who continue filling the courts with cases that represent political causes but not the legal needs of the poor that Congress empowered this agency to protect.

Finally, America’s founders provided the tool of impeachment for removing public officials. The constitutional standard for impeachment "high crimes and misdemeanors" has never been limited to indictable offenses as some argue today. In fact, impeachment was created precisely because the criminal law does not address some offenses for which public officials should be removed from office. For 600 years of English and American legal history, judges have been impeached for misuse of power, issuing extrajudicial opinions, or encroaching on the power of the legislature. George Mason and James Madison believed judges could be impeached for attempting to subvert the Constitution. Alexander Hamilton wrote candidly in The Federalist No.81 that judges would not dare usurp legislative power (the very essence of judicial activism) because Congress could impeach them for it. I am not here to play "America’s Most Wanted" and will not name judges on any personal hit list; rather, those who took an oath to support and defend the Constitution should begin to take seriously what that Constitution says and be willing to use the tools it provides.

This is the system America’s founders created. It is absolutely absurd to say, as some do today, that the founders at the same time established a federal judiciary and immediately threatened its independence. I would ask them where their bizarre definition of judicial independence comes from; it is certainly not from America’s founders, certainly not from the Constitution, certainly not from our system of separated powers. No, asserting this very modern made-up cliche is actually a way of saying "leave those activist judges alone because we like what they are doing." The real threat to judicial independence comes from within the judiciary from judges who will not act like judges, and not from outside the judiciary from an evaluating public or from Congress exercising the very tools America’s founders established.

In short, America’s founders sought to separate and limit government power, including judicial power. The failure to use the tools they provided for this end has, predictably, resulted in an explosion of judicial power and the crisis of judicial activism we see today. The answer is reasserting those tools America’s framers established to bring our system back into better balance and, in so doing, help preserve the self-government and liberty that is threatened today.

If you have any questions or would like more information about judicial activism, please contact us at ttardibono@fcref.org.


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