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.
Americas 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 Americas founders established. Judicial power has grown exponentially
because Congress has not used the tools already at its disposal for checking that power.
First, Americas 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 nominees
judicial philosophy; and little attention is paid to a nominees 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
Second, Americas 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 Grassleys 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, Americas 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 "Americas
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 Americas 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
Americas 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 Americas founders established.
In short, Americas 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 Americas
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 firstname.lastname@example.org.
Free Congress Research and Education Foundation
717 Second Street, NE, Washington, DC 20002
Phone 202-546-3000 Fax 202-543-8425