Senate Debate on Empathy
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http://www.c-spanarchives.org/congress/?q=node/77531&id=9000667

2009-06-17 - Jeff Sessions
 

Sessions, Jeff [R-AL]
Begin2009-06-1716:23:20End16:46:34Length00:23:14

Mr. SESSIONS. Mr. President, the nomination of a new Justice to the Supreme Court of the United States brings to our minds a core question, both for the Senate and the American people, and that is: What is the proper role of a Federal judge in our Republic?

Answering this question is not simply an academic task, it is fundamental to what we will be doing here. How the American people and their representatives and their Senators, the ones who have been delegated that responsibility, answer that question impacts not only the future of our judiciary but I think the future of our legal system and the American experience.

In traveling the world as part of the Armed Services Committee, I am more convinced than ever before that the glory of our American experience, our liberty, and our prosperity is based on the fact that we have a legal system you can count on. When you go to places such as Afghanistan or Iraq or Pakistan or the West Bank or Bosnia and you see people--and they cannot get a legal system working. It does not work, and people are not protected, in their persons, from attack, and their property is
not protected, contracts often are not enforced properly. That just demoralizes the country. It makes it very difficult for them to progress.

I am so proud of the American legal system. It is something we inherited, we built upon. It is the bulwark for our liberty and our prosperity.

So we ask this question: What do judges do? Do they faithfully interpret our Constitution and laws as written or do they have the power to reinterpret those documents through the lens of their personal views, backgrounds, and opinions?

Is the Judiciary to be a modest one, applying the policies others have enacted, or can it, the Judiciary, create new policies that a judge may desire or think are good?

When the correct answer to a legal case is difficult to ascertain, is a judge then empowered to remove his or her blindfold, that Lady of Justice with the blindfold on holding the scales? Can they remove the blindfold and allow their personal feeling or other outside factors to sway the ultimate decision in the case?

I am going to be talking about that and addressing those questions in the weeks to come. But I do think we need to first begin at the source. We must return to the words and ideas of those who founded our Nation, whose foresight resulted in the greatest Republic this world has ever known and the greatest legal system anywhere in the world.

It is clear from reviewing these words and ideas and ideals, particularly as expressed in the Constitution itself, that our Founders desired and created a court system that was independent, impartial, restrained, and that, through a faithful rendering of the Constitution, serves as a check against the intrusion of government on the rights of humankind.

The Founders established a government that was modest in scope and limited in its authority. In order to limit the expansion of Federal Government power, they bounded the government by a written Constitution. Its powers were only those expressly granted to the government. As Chief Justice John Marshall famously wrote:



This government is acknowledged by all to be one of enumerated powers.



Enumerated means the government has the power it was given and only those powers it was given. If you will recall the Constitution starts out:



We the people of the United States of America, in order to establish a more perfect Union .....



So the people established it, and they granted certain powers to the branches of government. But those powers were not unlimited, they were indeed limited. They were enumerated and set forth.

But our Founders knew these limitations, history being what it is, standing alone were not enough. So they created three distinct branches of the government, creating a system of checks and balances to prevent any one branch from consolidating too much power. The Constitution gives each branch its own responsibility.

Article I of the Constitution declares:



All legislative powers, herein granted shall be vested in a Congress of the United States.



Article II two declares:



The executive power shall be vested in a President of the United States.



And Article III declares:



The judicial power of the United States shall be vested in one Supreme Court.



And such other Courts as the Congress creates.

These words are unambiguous. The Judiciary possesses no power to make law or even enforce law. In Federalist No. 47, one of our Founding Fathers, James Madison, cites the Constitution of Massachusetts which states:



The judicial shall never exercise the legislative and executive powers, or either of them, to the end that it may be a government of laws and not of men.



So Madison, in arguing for the Constitution, trying to convince the Americans to vote for it, quoted the Massachusetts Constitution--this provision in it, with approval stating that is essentially what we have in our Federal Government.

Madison was a remarkable man.

He went on to describe the separation of powers as the ``essential precaution in favor of liberty.'' Alexander Hamilton, in Federalist No. 78--written to encourage Americans to support the Constitution--quotes the French philosopher, Montesquieu, who said:



There is no liberty if the power of judging not be separated from the legislative and executive powers.



The judicial branch, then, is limited to the interpretation and application of law--law that exists, not law they create. At no point may its judges substitute their political or personal views for that of elected representatives or to the people themselves--the people's will having been permanently expressed in the Constitution that created the judiciary.

To gain a deeper understanding of this role, it is instructive to look further in Hamilton's Federalist No. 78, widely regarded as one of the definitive documents on the American court system. In it Hamilton explains that ``the interpretation of the law is the proper and peculiar province of the courts. The constitution ..... must be regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning.''

Judges do not grant rights or remove them. They defend the rights that the Constitution enumerates. So it is thus no surprise that Hamilton says a judge must have an ``inflexible and uniform adherence to the rights of the Constitution.''

In order to ensure that judges would consistently display such adherence to the Constitution in the face of outside pressures, our Framers took steps to ensure that the judiciary was independent from the other branches and insulated from political interference. As was often the case, the Framers were guided by the wisdom of their own experience. They had a lot of common sense in the way they dealt with things.

In England, colonial judges were not protected from the whims of the King. Included in the Declaration of Independence's litany of grievances is the assertion, when Jefferson was setting forth the complaints against the King, he asserted that the King had ``made Judges dependent on his Will alone, for the tenure of their offices .....''

That was a complaint. That was one of the things we objected to in the way the King was handling the people in the Colonies. That was part of the Declaration. When the Constitution was drafted, that matter was fixed.

In order to shield the courts from the threat of political pressure or retribution, article III effectively grants judges a lifetime appointment, the only Federal office in America that has a lifetime appointment. We have to answer to the public. So does the President. It also specifically prohibits Congress from diminishing judicial pay or removing judges during times of good behavior. So Congress can't remove a judge or even cut their pay. Hamilton referred to this arrangement as ``one of the
most valuable of modern improvements in the practice of government.'' He went on to say that he saw it as the best step available to ``secure a steady, upright, and impartial administration of the laws.''

So Madison hoped the courts, set apart from the shifting tides of public opinion, would be better suited to act as ``faithful guardians of the constitution'' to stand against ``dangerous innovations in government.'' In other [Page: S6698]
words, courts are removed from the political process not so they are free to reinterpret the Constitution and set policy, but so they are free from the pressures of those who would encourage them to do just that.

The Framers also understood that the courts, as an unelected branch of government with a narrow mandate, would also necessarily be the weakest branch. Hamilton wrote that whoever looks at the ``different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.
.....It may truly be said to have neither force nor will, but merely judgment. .....''

So in light of this narrow mandate that judges have been given, judges have understood from time to time that they ought not to be drawn into the political thicket; that they ought to decline to answer questions that they felt were more appropriately to be addressed by the political branches of government. Typically, this distant approach has been invoked when the Constitution has delegated decision-making on a particular issue to a particular branch, when the court finds a lack of ``judicially
discoverable and manageable standards'' to guide its decision-making, or when the court feels it best not to insert itself in a conflict between branches. That is what is happening. They are showing restraint and discipline. This is an example of judicial restraint because it respects the powers of the other branches and the role of elected representatives rather than the appointed judges in establishing policy.

This is not an academic exercise or an abstract hypothetical. Judicial activism has enormous consequences for every American because if judges who are given a lifetime appointment and guaranteed salaries are given the power to set policy, then that is an anti-democratic outcome because we have created someone outside the political process and allowed them to set policy for the country and they cease to be accountable to the American people.

The men and women of the Supreme Court hold extraordinary power over our lives. It takes only five Justices to determine what the words of the Constitution mean. You may think it is nine; it is really just five. If five of the nine agree that the Constitution means this or that, it is as good--hold your hats--as if three-fourths of the States passed a constitutional amendment along with the supermajority votes of the Congress. So this is a powerful thing a Supreme Court Justice possesses, the
ability to interpret words of the Constitution.

When Justices break from the ideal of modest and restrained practices, as described by Hamilton, they begin creating rights and destroying rights based on their personal views, which they were never empowered to do. The temptation to reinterpret the Constitution leads judges, sometimes, to succumb to the siren call of using that opportunity they might possess to enact something they would like to see occur.

Maybe somebody will write in a law review that they were bold and courageous and did something great. We have seen some of these actions occur. Under the power to regulate business and commerce the government is given, our Supreme Court recently ruled that carbon dioxide, which is a naturally occurring substance in our environment--when plants decay, they emit carbon dioxide; when they live, they draw in from the air carbon dioxide; it is plant food--they ruled that it was a pollutant. As a result,
regardless of how you see that matter, I think when the statute was passed they gave EPA regulation to control pollution in the 1970s long before global warming was ever a consideration; that Congress had no contemplation that it would be used to limit carbon dioxide some years later. But that is what the Court ruled.

I only say that because that was a huge economic decision of monumental proportions. It called on an agency of the U.S. Government to regulate every business in America that uses fossil fuels. It is a far-reaching decision. Right or wrong, I just point out what five members of the Court can do with a ruling, and that was five members. Four members dissented on that case.

At least two members of the Supreme Court concluded that the death penalty is unconstitutional because they believe that it is cruel and unusual as prohibited by the eighth amendment to the Constitution. They dissented on every single death penalty case and sought to get others to agree with them. Some thought others might agree with them. But as time went by, they have now left the bench and no other Judges have adhered to that philosophy. But I would say that it is an absolutely untenable position
because the Constitution itself makes at least eight references to the death penalty. It is implicit in the Constitution itself. It says the government can't take life without due process. So that contemplates that there was a death penalty, and you could take life with due process.

The Constitution also refers to capital crimes and makes other references to the death penalty. Every single Colony, every single State at the founding of our government had a death penalty. It is an abuse of power for two Judges to assert that the eighth amendment, which prohibited drawing and quartering and other inhumane-type activities, actually should be construed to prohibit the death penalty. That is judicial activism. They didn't like the death penalty. They read through the Constitution,
found these words, and tried to make it say what it does not.

So the question is not whether these policies are good or bad, whether you like the death penalty or not. That is a matter of opinion. And how one believes that global warming should be confronted is not the question. The question is whether a court comprised of nine unelected Judges should set policy on huge matters before the country that we are debating in the political arena.

Should that not be the President and the Congress who are accountable to the voters to openly debate these issues and vote yes or no and stand before the people and be accountable to them for the actions they took? I think the Constitution clearly dictates the latter is the appropriate way.

A number of groups and activists believe the Court is sort of their place and that social goals and agendas they believe in that are not likely to be won at the ballot box, they have an opportunity to get a judge to declare it so. We have the Ninth Circuit Court of Appeals en banc ruling that the Pledge of Allegiance to the Constitution is unconstitutional because it has the words under God in it. Actually, that has never been reversed. It has been vacated in a sense because the Supreme Court
rejected it on, I think, standing grounds. But at any rate, those are the things that are out there. It is not in the Constitution. This is a bad course for America.

If the judiciary heads further down that path, then I think we do have dangers because we are actually weakening the Constitution. How can we uphold the rule of law if those who weigh the scales have the power to tip them one way or the other based on empathy, their feelings or their personal views? How can we curb the excess of Federal power if we allow our courts to step so far beyond the limits of their legitimate authority? How can the least among us depend on the law to deliver justice,
to protect them, to steadfastly protect their liberties, if rulings are no longer objective and if a single judge has the power to place his or her empathy above the law and the evidence?

So with these fundamental questions in mind, I hope the comments I make in the weeks to come will be of some value as we talk about the future of the judiciary, what the role of a judge ought to be on our highest court, and to uphold our sacred charter of inalienable rights.

So let me repeat, I love the American legal system. I am so much an admirer of the Federal legal system I practiced in for 15 years before fabulous judges. They were accused sometimes of thinking they were anointed rather than appointed. But I found most of the time--the prosecutor that you are--they did follow the law and they tried to be fair. I think the independence we give them is a factor in their fairness and something I will defend. But there is a responsibility that comes with the independence
judges get. And that responsibility is that when they get that bench [Page: S6699]
and they assume that power, they not abuse it, they use integrity, they are objective, and they show restraint.

Mr. President, I yield the floor.