Page images

Mr. CHABOT. Let me move to the gentleman from California who has asked for an additional 2 minutes, and he'll be granted that at this time.

Mr. SCHIFF. Thank you, Mr. Chairman. I appreciate it.

Professor Rabkin, it's not my desire to mock in my comments, but really the language that you use when you talk about an organized, systematic, pervasive effort, it sounds like an international judicial cabal of some kind, an international judicial conspiracy at work. You talk about it being subversive. You use words like "infiltrate," and given the already inherent hyperbole of the Congress, you're adding fuel to the fire.

Professor Ramsey says that this may not be a huge problem now, but there is a momentum in these things, small mistakes become magnified. Well, that applies to the Congress too. When we make small mistakes, they become magnified. When we establish a precedent of breaking down the independence of judiciary, it may be in a small form now, and here in this resolution, it may be in a much more significantly damaging form later.

I'd like to just conclude my remarks by quoting the Chief Justice's year-end report at the end of last year where Justice Rehnquist wrote that he wanted to focus on the relationship between the Judicial Branch and the Legislative Branch. During the last year, he wrote, "Tt seems the traditional interchange between the Congress and the Judiciary broke down when Congress enacted what is known as the Protect Act, making some rather dramatic changes to the laws governing the Federal sentencing process." He acknowledges it's well within the legislative function to do so, but he points out this act was enacted without any consideration of the views of the judiciary. "It is the Congress' job to legislate, but each branch of government has a unique perspective, and taking into account these diverse perspectives improves the process. Obtaining the views of the judiciary before the Protect Act was enacted would have given all Members of Congress the benefit of perspective they may not have been aware of on this aspect of legislation and other aspects that deal with the delicate process judges understand well." Finally, he concludes: "Judges have a perspective on the administration of justice that is not necessarily available to Members of Congress and the people they represent. Judges have again by constitutional design an institutional commitment to the independent administration of justice and are able to see the consequence of judicial reform proposals that legislative sponsors may not be in a position to see. Consultation with the Judiciary will improve both the process and the product."

And I don't think there's been any consultation with the courts on this issue, and I think this is just another illustration of what the Chief Justice wrote not 14 years ago or 15 years, but, in fact, wrote just a few months ago. I think we would all be well advised to take the Chief Justice's admonition into mind and work to improve our communication and not take gratuitous shots across the bough.

Mr. CHABOT. The gentleman's time has expired, but if the professor would like to respond.

Mr. RABKIN. Yeah. What you quoted there is Rehnquist saying don't change the law in ways that will affect the Judiciary without

consultation. This resolution is not changing the law. It is expressing a philosophical viewpoint, and I think the philosophical viewpoint of the Congress is not going to change because of consultation. The Congress believes what it believes, which happens to be what the country believes, and if you and the courts believe otherwise, okay; you express yourselves.

Mr. SCHIFF. And, professor, you think that the combination of this effort, the threat of subpoenaing a Federal judge for his sentencing records

Mr. RABKIN. That's something else. I wasn't testifying on that. I don't know about that.

Mr. SCHIFF. The cumulative impact, you don't think has chilling impact on the independence of the Judiciary?

Mr. RABKIN. I don't know about the other things, but this seems to me extremely sensible, and this is the thing which we're testifying about.

Mr. CHABOT. The gentleman's time has expired.

I'd ask unanimous consent that the gentleman from Virginia, Mr. Goodlatte, who is a Member of the overall Judiciary Committee be granted 5 minutes to ask questions, and he's recognized.

Mr. GOODLATTE. Mr. Chairman, thank you very much. I want to thank you and the other Members of the Subcommittee for your forbearance in allowing me to testify. This is an issue in which I have great interest and was pleased to introduce along with my colleague and good friend Congressman Feeney, this resolution, and I by no means think this is much ado about nothing.

I would say to the gentleman from California that, quite right, there should be great consultation between the Congress and the Judiciary on matters that are of mutual concern, and I would welcome the opportunity if this Subcommittee or the full Committee were to invite Justice Rehnquist and the other justices of the court to come down and have a discussion with us about these very important issues. I presume that these are issues that are not a matter of being much ado about nothing; otherwise, a very intelligent member of the Supreme Court like Justice Breyer would not have included such surplusage in his opinion if he thought it was much ado about nothing. I presume that Justice Scalia did not think it was much ado about nothing if he felt that it was of such great significance that a decision of the Court, which was having great difficulty finding anchor in any language in U.S. Constitution or any laws passed by the Congress to anchor that decision, would point out that reliance was made in interpreting our Constitution upon the views and decisions of other courts.

And I am especially concerned when justices go even further as Justice O'Connor went when she stated in a speech last year that, "I suspect that over time, the United States Supreme Court will rely increasingly, rely increasingly, on international and foreign courts in examining domestic issues."

So I think the Congress is quite right to catch this at an early stage when it is perhaps used in limited fashion by the courts, but clearly in such a way that many members of the Court-I understand six members of the Court have indicated a desire to do this further in the future.

Let me ask you, Professor McGinnis, you bring up a very important point in your testimony that the Constitution is unique and special because its authority is derived from the people of the United States of America. In your opinion, when the courts use foreign laws to interpret the U.S. Constitution, does it in effect weaken the authority of the Constitution by supplementing the will of the American people for the will of the foreign governments?

Mr. MCGINNIS. I think over time, it's not so much the substitution of the will, but I think it dissolves-it's a danger of dissolving the affections that Americans have for their own Constitution. Constitutionism has a great problem.

Who is going to defend the Constitution? Madison tried to focus on this. He thought that citizens aren't going to simply defend it out of their own interests; they have got to have some affection for it. And one of the things that creates affection for the Constitution is it's their Constitution, and if systematically over time the Supreme Court relies, as you quite correctly say that Justice O'Connor suggests, increasingly on other law, I think that starts to dissolve these crucial bonds.

So I think that is one of the really long-term dangers of the trend that is beginning.

Mr. CHABOT. Well, thank you. And one of the things that concerned me, I found striking the language that Congressman Hostettler read from Federalist Paper 78 about our Founding Fathers' perception of what the power of the Judiciary would be, and I think today we would find it equally striking to us that they would have such distant and remote view compared to the actual power that the Judiciary exercises today. And one of the issues that is underlying this resolution and I suspect future clashes, if you want to call it that, between the Congress and Judiciary is the question of whether the Founding Fathers, having taken that view, really placed in our Constitution enough checks and balances on this power or whether it's simply a failure of the Congress and the Executive Branch to act in response to the acquisition of power that has taken place on the part of our Judiciary, not to simply interpret the laws and fairly resolve disputes between parties, which I think they clearly contemplated and which I think every Member of this panel would say they clearly contemplated, but to take it further, to actually rewrite our laws and effectively finding in our Constitution things that the vast majority of the American people do not find.

So I would express my concern and ask any member of the panel if they have any thoughts on what measures the Congress could take to effectively exercise that system of checks and balances that is so clearly contemplated in our Constitution against abuse of power. Clearly, we've never removed anybody from office for misinterpreting in our view a section of the Constitution, and clearly we have never taken the steps that have been discussed by others, and perhaps we could, but they are very difficult steps.

Are there other things that we should be looking at to check unbridled power on the part of the Court?

Mr. CHABOT. The gentleman's time has expired. The panel, any members that would like to address that, can. I would ask them if they could please be brief. We've got one more questioner and

we've got a vote on the floor. So we're going to have to leave here shortly. So any of the members who would like to address that.

Professor Ramsey.

Mr. RAMSEY. Yes, very quickly, and I think this responds to some of the concerns that have been expressed by others. I think that the greatest check on the courts is that the courts must not only make decisions, but they must explain their decisions in rational discourse that is publicly available for criticism by all and that the public is, indeed, invited to criticize what the Court has said that it is doing.

Mr. GOODLATTE. Just as we are doing today?

Mr. RAMSEY. Yes, exactly, and I think that that's why I think that this measure is entirely an appropriate exercise of Congress' power and is not a violation of separation of powers as some have suggested. When editorial writers, when law professors, and when members of other branches of the Government take up the things the Supreme Court has written to justify their decisions and say this does not seem like an adequate justification to us, that is one of the great checks in our system we have on courts.

Mr. CHABOT. Any other comments from the panel? Professor? Ms. JACKSON. I want to express agreement with the importance as a check, of the giving of public judgments and reasons, which not only Members of Congress can criticize, but newspapers and ordinary citizens, and I want to raise a grave caution about the idea that the impeachment power ever would be used because of disagreement with a decision. Again, removal of judges whose decisions the Government doesn't like is a characteristic of countries that I don't think we want to move our system towards, and the protection of the independence of the Judiciary, whether we agree or disagree with their decisions, is something I think is very important.

Mr. CHABOT. Thank you.

The gentleman's time has expired. The last questioner this afternoon will be the gentleman from Alabama, Mr. Bachus, who is recognized.

Mr. BACHUS. Thank you.

Let me say that I am enthusiastically for this resolution, and I commend the gentleman from Virginia.

Professor Jackson, one thing that I'm curious about, when I talk to my constituents when they talk about this issue, and you talk about a foreign law, let's just say a law in Germany, none of my constituents elect those legislative bodies. They don't have one vote. They don't have one iota of influence in that legislative proc


Isn't that really the essence of democracy? We elect our Representatives, our Congressmen, our State legislators to make laws for us. The German law is made by Germans, people that were elected or appointed by Germans. Isn't that a cause of concern to you that our courts would be citing decisions where there is no input by our voters? Isn't the vote what this country has, our democracy?

Ms. JACKSON. If the Court were treating a foreign law as binding, I would agree this raises very serious questions of democratic self-governance.

Mr. BACHUS. Well, let me ask you this: Why would the court even refer to a law in a decision, a foreign law, "a foreign law?" Why would it even be in the opinion if they weren't focusing on it? Ms. JACKSON. Well, sometimes the Court, as I mentioned earlier, looks at foreign law to say we don't want to be like that; we're different from that; we can learn.

Mr. BACHUS. What if they looked at it and

Ms. JACKSON. If they looked at it and said, "We protect liberty and so does the European Court of Human Rights

Mr. BACHUS. But don't we have enough laws here without looking at some foreign laws that were formed by people that weren't elected, weren't appointed by Americans?

Ms. JACKSON. We do have a lot of law here, and the great bulk of the opinion of the Supreme Court in Lawrence v. Texas involves discussion of U.S. cases, Federal cases, and also of State cases.

Mr. BACHUS. But in Lawrence, you bring up in Lawrence. In Lawrence, they reversed what had been a long-standing law. They reversed an opinion, and they did so and they cited a foreign case. You say it wasn't persuasive. Why did they bring it up if they weren't focused on it?

Ms. JACKSON. Well, actually the decision

Mr. BACHUS. Was it irrelevant?

Ms. JACKSON. No. The decision that they reversed, which was Bowers v. Hardwick, in that case, the Chief Justice, one of the judges in the majority, had actually referred to what western civilization did as part of the basis for his thinking in the earlier case to uphold the sodomy laws. So, in part, the Lawrence v. Texas decision citation to Europe was to say Bowers v. Hardwick misunderstood what western civilization and Europe was about, and in that sense, sort of cleaning up the record for accuracy, it's seems entirely appropriate.

Courts refer to a lot of material that is not binding as such, but which helps them understood the issue before them.

Mr. BACHUS. But that's my very point. It's influencing them, and it shouldn't, and let me say this: If you ask one of your students what is the real estate law, what is the issue on this that you're teaching, and they came back to you and quoted foreign-would you prefer that they quote American law or German law?

Ms. JACKSON. They need to know American law. If we're training them in American law schools, there's no question.

Mr. BACHUS. Right.

Ms. JACKSON. But if the question is how to decide an unsettled issue in the State of New York, for example, it would be good lawyering for them to say, "Well, even though voters in Minnesota don't vote in New York, let's see how they did it there."

Mr. BACHUS. Yes.

Ms. JACKSON. Maybe we'll agree. Maybe we'll disagree. But that tradition of looking to compare law

Mr. BACHUS. But that's because they are under the same constitution, the U.S. Constitution.

Ms. JACKSON. That's right.

Mr. BACHUS. They're not under some

« ՆախորդըՇարունակել »