Congress Must Curb the Imperial Judiciary
The most important duty of the 105th Congress is to protect America from judicial usurpation and restore our constitutional balance of powers among the three branches of our government. This goal should take priority over everything else because the federal courts pose the number-one threat to our democratic process, as well as to conservative and pro-family goals, and because the Congress has the power to take many constructive steps that cannot be vetoed by President Clinton.
When a constitutional case is presented to the courts, judges make their decisions in one of two ways. They can look to the United States Constitution and see whether it authorizes or forbids the disputed action, or they can impose their own social views on us, dressed up with self-serving jargon. Unfortunately, personal opinions are what the Supreme Court has imposed in the areas of racial preferences and quotas, criminal procedures, pornography, forced busing, prayer and the Ten Commandments in public schools, internal security, and term limits.
The courts have invented new “rights” such as the right to abortion and to receive welfare payments, and have arbitrarily overturned the votes of the people in California, Colorado, Arizona, Arkansas, and Washington State who had the old-fashioned belief that they could exercise self-government. Although the Constitution grants “all legislative Powers” to Congress, the federal courts have set themselves up as a super-legislature and grabbed the authority to micromanage schools, prisons, hiring standards, and legislative reapportionment.
In the latest outrage, a federal judge ruled that Penthouse magazine and other sexually explicit magazines and videos have a First Amendment right to be available in subsidized post exchanges on military bases. By the ruling in General Media Communications v. Perry (1997), the military is enjoined from obeying the Military Honor and Decency Act of 1996, which forbade such materials on military bases.
In United States v. Virginia (1996), the Supreme Court ordered women admitted to Virginia Military Institute, an institution that had been constitutionally all-male for 150 years. The Court simply wrote Ruth Bader Ginsburg’s radical feminism into the law and even smeared as “close-minded” those who believe there are inherent differences between men and women.
In Romer v. Evans (1996), the Supreme Court overturned the majority of the people of Colorado who, by statewide referendum (Amendment 2), precluded localities from granting special status to homosexuals. Without any authority from the Constitution or citation of any applicable legal precedent, the Court ruled that Colorado’s Amendment 2 was totally without a rational basis and was “born of animosity” toward homosexuals. It would be more accurate to say that the Court’s decision was without a constitutional basis and was born of animosity toward traditional moral standards and the people who hold them sacred. Will the Court’s own animosity prevail when it considers whether other states must respect the Hawaii Supreme Court’s invention of the new “right” of same-sex marriages?
Also in the 1995-1996 term, the Court struck down a federal statute that required cable television operators to put their “patently offensive” pictures of sexual activities or organs on a separate channel that could be accessed only on a subscriber’s written request. Without any authority from the Constitution, the Court again perverted the First Amendment in order to protect pornography.
The arrogance of the Supreme Court justices reached its apogee in Planned Parenthood v. Casey (1992), when the Court linked its own legitimacy with abortion in a circular, macabre argument. Roe v. Wade (1973) was handed down without any authority from the Constitution, yet the Court in Casey insisted that Roe was cast in stone lest “the Court’s legitimacy be undermined.” In other words, to maintain the Court’s “legitimacy,” we are told an illegitimate decision can’t be overruled!
Taking their lead from the Supreme Court, lower federal courts have manifested their disdain for the popular will by arrogantly overturning the wishes of the majority of the voters expressed in statewide referenda. A single federal judge nullified California Proposition 187, which received five million votes in 1994 and would have prohibited giving taxpayer benefits to illegal aliens.
Another single federal judge nullified Proposition 209, the California Civil Rights Initiative to end affirmative action, which overwhelmingly passed in 1996. It is nonsense to call it unconstitutional when its text reads like it was copied from the 1964 Civil Rights Act. Judge Thelton Henderson, the Carter appointee and a former ACLU board member and civil rights litigator who rendered this decision, not only used his judicial power to overturn the wishes of 4.7 million Californians, but in a highly suspect procedure, he grabbed jurisdiction over this case away from another judge to whom it had been assigned.
In a statewide referendum in 1991, the voters in the state of Washington reaffirmed a state statute that prohibited anyone from “knowingly causing or aiding other persons in ending their lives.” In Compassion in Dying v. Washington in 1996, a federal appeals court overturned the vote of the people, invented a “right” to physician-assisted suicide, and smeared those who oppose this as “cruel.” In Quill v. Vacco (1996), another federal appeals court threw out the state of New York’s prohibition against assisted suicide. The Supreme Court has not yet decided these cases, but meanwhile one federal judge’s injunction has nullified enforcement.
What Can Congress Do?
What are our remedies? Since law-abiding citizens can’t hold the life-tenured radical judges accountable, grassroots groups everywhere are planning on holding accountable every Senator and Congressman who fails to act to reign in the imperial judiciary. Here’s what we expect.
- Senators should use their Article II “Advice and Consent” power to “just say no” to Clinton’s nomineesunless they publicly pledge to abide by the words of the Constitution and statutes and the intent of their authors. When Clinton’s nominees demur, Republican Senators should do what Democratic Senators have done so often: just don’t schedule a vote or even a hearing on the nominees.
President Clinton has already appointed 202 activist judges, more than 25 percent of the entire federal bench. The Senate did not defeat a single Clinton judicial nominee, either in committee or on the Senate floor. It approved 198 Clinton nominees by unanimous consent without a minute of floor debate. It was a disgrace that Republican Senators gave a free pass to Ruth Bader Ginsburg, despite her documented paper trail espousing the most bizarre feminist positions.
If the Republican Senate continues to confirm Clinton’s nominees, by the end of his term Clinton will have named a majority of judges. If the Republican Senate allows this to happen, it doesn’t deserve to be reelected next time around.
- Congress should use Article III to limit the jurisdiction of the federal courts. This explicit power is given to Congress by the Constitution, and it ought to be used without delay.
Article III, Section 1 of the Constitution provides that “the judicial power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Since Congress created the federal district and appellate courts, Congress can regulate, reorganize or even abolish them. As an example of proper regulation, Congress in the past has ordered that all cases of a certain kind must be heard by a three-judge district court, instead of by just one judge.
In the 1930s, liberals in Congress thought the federal courts were too pro-business to handle cases involving labor strikes fairly. In 1932 Congress passed the Norris-Guardia Act removing jurisdiction in this field from the federal courts, and this was upheld by the Supreme Court in Lauf v. E. G. Shinner (1938). Liberals followed the same procedure when they passed the Hiram Johnson Acts to remove federal court jurisdiction over public utility rates and state tax rates.
Another celebrated example was the Emergency Price Control Act of 1942 (OPA), in which Congress removed from federal courts the jurisdiction to consider the validity of any OPA regulation. In the test case upholding this law, Lockerty v. Phillips (1943), the Supreme Court held that Congress has the power of “withholding jurisdiction from them [the federal courts] in the exact degrees and character which to Congress may seem proper for the public good.” In 1946 the Supreme Court handed down the portal-to-portal pay decision, which was generally recognized to be a big mistake that would send hundreds of firms into bankruptcy. Congress simply removed jurisdiction from the federal courts to handle any more such cases.
Although Congress’s power over the Supreme Court is somewhat limited, the Constitution still gives Congress the power to define the boundaries of the Supreme Court “with such Exceptions, and under such Regulations as the Congress shall make.” The Supreme Court upheld this limitation of its own authority in Ex parte McCardle (1868), stating, “the power to make exceptions to the appellate jurisdiction of this Court is given by express words.”
One of the tragedies of history is that the effort led by Senator Robert Griffin (R-MI) to withdraw jurisdiction from the federal courts over forced busing failed in the Senate by only one vote on February 29, 1972. In 1980, Senator Jesse Helms’ (R-NC) amendment to withdraw jurisdiction over prayer in public schools passed the Senate, but failed to come to a vote in the House because of Speaker Tip O’Neill’s legislative chicanery. And in 1969 after the Supreme Court had shocked America with a series of 22 pro-obscenity decisions, Senator Everett Dirksen (R-IL) made a valiant, but unsuccessful, effort to withdraw jurisdiction from the federal courts to overturn a jury’s finding that something is obscene.
For starters, Congress should deny federal judges the power to impose taxes. One of the Supreme Court’s most arrogant decisions, Missouri v. Jenkins (1990), upheld a federal judge’s doubling of property taxes in Kansas City in order to pay for the world’s most extravagant public school facilities. The Court simply ignored the Constitution’s most peremptory directive, “All Bills for raising Revenue shall originate in the House of Representatives” (Article I, Section 7), and the words of James Madison in Federalist No. 48: “The legislative branch alone has access to the pockets of the people.”
Congress should take away all jurisdiction from the federal courts to issue injunctions to overturn referenda and to prevent enforcement of the voters’ wishes during the years that a case winds its way through the court system. It is outrageous that a single federal judge can nullify initiatives passed by a majority of the voters, as has happened in a half dozen states.
Congress should also take away any power of the federal courts to invent new rights, such as the so-called “rights” to same-sex marriage or to assisted suicide. Congress should stop the courts’ arrogant micromanagement of schools and prisons.
- Congress should remove from the federal courts all jurisdiction over crimes that are already crimes under state law. Over the last several years, Congress itself has been guilty of vastly increasing the jurisdiction of the federal courts by creating thousands of new federal crimes. There are now more than 3,000 federal crimes. This trend even accelerated during 1995 and 1996, proving that all the pious talk about the Tenth Amendment by Bob Dole and others was as phony as a $3 bill.
Under our federal system, criminal law should be a state, not a federal, function. The Constitution only made three crimes federal offenses, and there’s no reason to have more than about a dozen federal crimes.
- The Senate and House Judiciary Committees should hold extensive hearingson various proposals to stop the usurpation of power by the federal courts. Congress’s investigative function is one of its most important duties, and now is the time to use it. Many experts and scholars have been proposing various remedies to curb judicial usurpation, and Congressional hearings are the proper forum to air them.
For example, Judge Robert Bork has suggested making court decisions subject to modification or reversal by a majority vote of Congress. Others have suggested limiting the terms of all federal judges, or bringing them up for reconfirmation after a certain number of years, or requiring them to stand for reelection as most state court judges do. No state grants lifetime tenure to its judges. These proposals would require a constitutional amendment.
We should have a national debate on the issue of lifetime tenure for federal judges. Justice William Douglas was appointed to the U.S. Supreme Court because President Franklin D. Roosevelt wanted to replace what he called the “nine old men” with young liberal justices. Douglas stayed on the Court for 36 years (writing 1,200 opinions), through the fourth term of Roosevelt and the terms of Presidents Harry Truman, Dwight Eisenhower, John Kennedy, Lyndon Johnson, Richard Nixon, and Gerald Ford. Douglas’s prejudice against religion was so intense that he even questioned the constitutionality of chaplains in the armed services and the words “In God We Trust” on our money. Four times Justice Douglas took a wife “for better or worse . . . until death do us part.” He divorced three of his wives. Yet, the American people were locked in a judicial embrace with Douglas no matter how outrageous his decisions or behavior. Congressman Gerald Ford once tried (unfortunately, unsuccessfully) to have Douglas impeached because of his money dealings with Las Vegas gamblers.
- Congress should reassert its own investigativefunctionand eliminate the special status the American Bar Association has long enjoyed in evaluating court nominees. The ABA is a special-interest political group with its own leftwing agenda, including abortion, the Equal Rights Amendment, affirmative action quotas, restricting welfare handouts, and perpetuating the out-of-control Legal Services Corporation.
- Congress should let it be known that it takes its impeachment power seriouslyand intends to use it. Article III specifies that all federal judges, including Supreme Court justices, “shall hold their offices during good behavior.” Making outrageous rulings that have no basis in the Constitution should be grounds for impeachment.
Even the threat of impeachment is useful. When New York Judge Harold Baer allowed a confessed drug dealer to go free, and critics from Mayor Rudy Giuliani to President Clinton threatened him with impeachment, he quickly reversed himself.
The federal courts are out of control. They have fundamentally altered our form of government and effectively changed the definition of “the supreme law of the land” from “this Constitution, and the Laws of the United States which shall be made in Pursuance thereof” to “whatever a federal judge decides this week.” This situation is intolerable, and it is the duty of the Republican Congress to use its constitutional powers to restore the balance of power among the three branches.
In the granddaddy document of American freedom, the Magna Carta signed at Runnymede in 1215, King John promised, “We will appoint as justices, constables, sheriffs, or other officials, only men that know the law of the realm and are minded to keep it well.” We expect at least as much from Republican Senators as our forefathers got from King John.
Tell your Senators and Congressmen you want them to get moving immediately with plans to curb the Imperial Judiciary.
Taxpayer-Funded Art Doesn’t Have to be Decent
A new federal court decision is sufficient to prove the thesis of Robert Bork’s new book that we are Slouching Toward Gomorrah. The decision also provides Congress with more than adequate reason to hurry up and abolish the National Endowment for the Arts, and the Senate with ammunition to reject confirmation of any more liberal judges.
In a 2-to-1 ruling in Karen Finley et al v. National Endowment for the Arts, the Ninth U.S. Circuit Court of Appeals held that it is unconstitutional for a government agency to consider “decency and respect” for American values when it doles out the taxpayers’ money. The decision itself is an assault on decency and respect for American values.
The winners in this case are Karen Finley, the woman who made her fame by parading on stage dressed in nothing but a layer of chocolate, and three others whose nude performances centered on homosexual themes, plus, of course, the American Civil Liberties Union. The losers are the American taxpayers and especially those foolish people who thought they could pass legislation in 1990 to “reform” the out-of-control National Endowment for the Arts.
After the American public was outraged over the N.E.A.’s awarding of taxpayer grants for Robert Mapplethorpe’s homoerotic images and Andres Serrano’s photograph of a crucifix immersed in his own urine, Congress tried to ban the flow of money to projects that are obscene, sadomasochistic or homoerotic. The Democratic-controlled Congress watered that down to a legislative plea to the N.E.A. to observe “general standards of decency,” but that didn’t satisfy the federal court.
The 1990 law required the N.E.A. to ensure that “artistic excellence and artistic merit are the criteria by which applications are judged, taking into consideration general standards of decency and respect for diverse beliefs and values of the American public.” That’s the language that Judge James Browning held violates the First and Fifth Amendment rights of artists who apply for taxpayer grants.
The New York Times gave the “chocolate-smeared woman” space on the Op-Ed page to whine that the case (even though she won) has had a “chilling effect” on art. If she would put on some clothes, maybe she wouldn’t find the atmosphere so chilly.
Judge Browning looked to the legislative history to interpret the new law and discovered that it “was specifically designed to prevent the funding of similar [e.g., Mapplethorpe and Serrano] art works.” He quoted the law’s author, Rep. Paul Henry (R-MI), as telling Congress, “Works which deeply offend the sensibilities of significant portions of the public ought not to be supported with public funds.” Henry thought he was making a reasonable argument. But Judge Browning expressed judicial horror at such narrow-mindedness!
In reality, N.E.A. officials took the new law with a large grain of salt. Instead of actually applying “general standards of decency,” N.E.A officials merely instructed the advisory panels (which are made up of you-scratch-my-back-and-I’ll-scratch-your-back friends of the grant-seeking “artists”) to bring their own definitions of these terms “to the table” and make them “part of the deliberative process.”
But even that didn’t satisfy Judge Browning! He expressed his constitutional worry that the “decency and respect” standard is “vague” because it raises “the danger of arbitrary and discriminatory application.” The dissent replied that the statute is every bit as “vague” in specifying that “artistic excellence and artistic merit are the criteria by which applications are judged.” The federal court, however, ruled that it isn’t “arbitrary” for the N.E.A. to claim that nude and sexual on-stage performances have “artistic excellence,” but it is “arbitrary” to say that they are indecent.
The liberal judge resolved this inconsistency by simply asserting that the N.E.A. advisory panels have “expertise” in determining “artistic excellence,” but have “no corresponding expertise in applying such free-floating concepts as ‘decency’ and ‘respect.'” (He’s probably right about that.)
Dissenting Judge Andrew Kleinfeld argued that government art grants are not “entitlements” (like Social Security or tax exemptions), or at least they shouldn’t be. In fiscal 1994, only 88 out of 5,168 applicants for Visual Artists Fellowships received grants of the type contested by the “N.E.A. Four,” so it’s obvious that arbitrary and subjective decisions were made.
The dissent stated what should be a clear principle of law: “That offensive or indecent expression cannot be censored does not mean that the government has to pay for it.” That is the main argument of those who oppose funding for the N.E.A.
This case should be the final nail in the coffin of the National Endowment for the Arts. Having a federal Ministry of Culture is bad enough, but forcing the taxpayers to finance one that is forbidden to observe standards of decency, is downright obscene.