On Judicial Despotism by Sen. John Ashcroft

Sen. Ashcroft,

Chairman of Senate Subcommittee on the Constitution, "On Judicial Despotism"

Courting Disaster: Judicial Despotism in the Age of Russell Clark

CPAC Annual Meeting March 6, 1997

Senator John Ashcroft, Chairman of the Senate Subcommittee on the Constitution, offers a sober analysis in a speech given in March to on America's need to curb the activities of judges who legislate from the Bench.

Thank you, Bill Pascoe, for that warm introduction. And, David (Keene) thank you for all that you and the American Conservative Union have done for movement politics. Let me begin by welcoming you to Washington. I want to welcome you not just in terms of hospitality, but also in terms of what you represent, and the values that you bring: the values of industry and commerce; integrity and faith; love of family and of country. And, perhaps most of all, a recognition that America's best days lie ahead.

All too often, the Congress thinks there is no end to the good they can do with your money and their brains It is time for us to put an end to this misguided belief. The Founding Father's vision was for a constitutional republic where the will of the people would be imposed on Washington, not the views of Washington imposed on the people. So, for those of us who toil under the dark cloud of this capital city, your presence here this morning is an inspiration.

Part ofthe mythology surrounding our Constitution is the idea that its adoption was inevitable. Time and distance have made it difficult to imagine that the wisdom and insight that is our founding document could have been tossed on the ash heap of history. Our forefathers, however, suffered no such delusions. They understood that the ratification debate was about first things, fundamental principles, ideas purchased with patriots' blood.

Alexander Hamilton predicted that a "torrent of angry and malignant passions" would be awakened by the debate. He was not disappointed. In Virginia, Patrick Henry decried the new Constitution, calling it a "resolution as radical as that which separated us from [the Crown]." In New England, opponents worried aloud about liberties lost, rights eroded, judicial power left like, quote, "a boundless ocean." But Hamilton and his allies would not yield to these sharply expressed fears of judicial despotism. Rejecting such concerns, Hamilton offered his now famous phrase, "Here, Sir, the people govern."

But "here" in America today, can it still be said that "the people govern"? Can it still be said that citizens control that which matters most? Or have people's lives and fortunes been relinquished to renegadejudges, a robed, contemptuous intellectual elite fulfilling Patrick Henry's prophecy, that of turning the courts into, quote, "nurser[ies] of vice and the bane of liberty"?

Consider just how far the federal judiciary has strayed. In 1987, the federal courts assumed the right to tax the American people. District Judge Russell Clark ordered a tax increase to "remedy vestiges of segregation" in the Kansas City, Missouri school system. The decree -- and two billion tax dollars -- turned the city's school district into a gold-plated Taj Mahal complete with editing and animation labs, vivariums and greenhouses, temperature-controlled art galleries, and a model UN wired for language translation. While satiating the judge's thirst for educational intermeddling, the reforms left student achievement unchanged. And so today, the planetariums, pools, and pay increases stand only as a testament to tyranny, an appalling judicial activism that is contrary to all that the Framers held dear.

As Supreme Court Justice Clarence Thomas indignantly opined, "[Clark] has trampled upon the principles of federalism" and in turn the Constitution itself. Or, consider 1992 when the court challenged God's ability to mark when life begins and ends. Three Reagan appointees joined the majority in Planned Parenthood of Southeastern Pennsylvania v. Casey to uphold a "woman's right to choose." So much for recapturing the Court. Together, Roe, Casey and their illegitimate progeny have occasioned the slaughter of thirty-five million children, thirty-five million innocents denied standing before the law.

My friends, when the Court intervenes in such matters, debate in the public square does not end. The divide only deepens. Who among us would suggest that abortion is less divisive today than when the Court wrested control from the fifty states and the people? As Judge Bork asserts, the abortion rulings represent "nothing more than the decision of a Court majority to enlist on one side of the culture war. In 1995, the Supreme Court stole the right of self-determination from the people, throwing out Arkansas' congressional term limit law. No matter your thinking on term limits, consider only this: the Constitution is "silent" on limited tenure. And, as Justice Thomas recognized, "where the Constitution is silent it raises no bar to action by the states or the people. In recalling the term limits decision, I am always reminded of Ed Jaksha, a retired telephone company manager. Jaksha canvassed the state of Nebraska -- in authentic colonial garb -- imploring voters to Turnout for Term Limits. A year later, Jaksha's time and treasure were deemed ill-spent by five ruffians in robes who were kind enough to save him from himself.

In 1996, the courts removed from the people the ability to establish equality under the law. District Court Judge Thelton Henderson prohibited the state of California from implementing Prop. 209. A Carter appointee who served on the ACLUs Board of Directors, Henderson held that if the California Civil Rights Initiative (CCRT) were implemented, minorities would "face an immediate possibility of irreparable harm." But, Judge Henderson, what of the "irreparable harm" racial preference programs are inflicting right now?

What of the Asian high school students routinely rejected at Berkeley based solely on the color of their skin? And, what of the "irreparable harm" activist judges have visited upon the U.S. Constitution? Perhaps someone should remind Judge Henderson that the constituting doctrine of all truly free societies is that rights belong to individuals, not groups. This was the essence of Justice Harlan's dissent in Plessy v. Ferguson just over a century ago. "The Constitution is color-blind," wrote Harlan, "and neither knows nor tolerates classes among citizens."

Tragically, the courts have turned your individual rights into group rights as the aggrieved rush to our least representative branch in search of entitlement. These cases are but a page of snapshots in an album of the liberties lost. Over the last half century, the federal courts have usurped from school boards the power to determine what a child can learn; removed from the people the ability to establish equality under the law; and challenged God's ability to mark when life begins and ends.

The courts have made liars of Hamilton, Madison, and Morris, confirming our forefathers' worst fears. For what the Framers intended to be the weakest branch of government, the judiciary, has become the most powerful. What, then, can we do to put an end to judicial tyranny?

We can begin by asking ourselves why modern judicial activism exists in the first place. Could it be that we have been lax in demanding that judges place our constitutional rights before their policy objectives? Could it be we have failed to rejectjudges who are willing to place their private preferences above the people's will? Could it be that we have populated the courts with judges who believe their intellect to be superior to that of the Framers? Could it be all of the above?

It is time to heed the counsel of Ed Meese by scrutinizing fully the nominees who come before the Senate for "advice and consent." Meese is right: there must be a dialogue between the President and the Senate regardingjudicial nominees. And, if the White House fails to solicit our "advice," perhaps we should withhold our "consent."

What of the current crop of would-be judges? Consider William Fletcher nominated by the President to the Ninth Circuit Court of Appeals. What has Mr. Fletcher done with himself since his Rhodes Scholar days with the President? Tenure at Berkeley's Boalt Hall School of Law has provided Fletcher a forum to outline a judicial vision as bold as it is misguided. It seems Mr. Fletcher feels judges should be able to use what he calls "discretionary" powers to achieve desired policy goals. In other words, Mr. Fletcher wants to use a court appointment as a license to legislate.

Americans have always believed efforts by the judiciary to legislate from the bench are illegitimate. To which Fletcher responds, "The presumption of illegitimacy may be overcome when the political bodies that should ordinarily exercise such discretion are seriously and chronically in default." Judge Russell Clark, meet "Willy" Fletcher; you two are sure to be fast friends. Frankly, the only thing "seriously and chronically in default," Mr. Fletcher, is your thinking on the United States Constitution. And then there is Margaret McKeown, another nominee for the Ninth Circuit Court of Appeals.

It was McKeown, her ACLU marching orders in hand, who led the fight to disallow a Washington state ballot initiative denying special rights to homosexuals. Now, if McKeown's opposition had been confined to lobbying against the measure, so be it. That is her constitutionally protected right. But her efforts were far more sinister. She attempted to keep Washington voters from deciding on the measure at all. McKeown argued that the initiative process itselfwas unconstitutional and represented an "immediate and irreparable harm."

The mere act of collecting signatures, it seems, would cause suffering, suicides, and substance abuse. Please! It's time to expose Mrs. McKeown and her ACLU friends for the liberal elitists that they are. Let me be clear: this is not about personality, it's not about ideology. It's about preserving our rights as they were indelibly inscribed in the Constitution. It is about not wanting more Russell Clarks on the federal bench. It is about a judicial legacy forged by the President and the Senate that will live well beyond the year 2000.

We need nominees who care more about preserving and restoring the Constitution than running schools, parks, and prisons; more about the ACU than the ACLU. That is the essence of the pledge that my friend Paul Weyrich is circulating in the Senate. Paul's pledge simply and clearly offers the words of Senate Judiciary Chairman Orrin Hatch. It says, "Those nominees who are or will be judicial activists should not be nominated by the President or confirmed by the Senate, and I personally will do my best to see to it that they are not.

What a tragic state of affairs when conservatives feel compelled to circulate a pledge to safeguard a constitution that every Senator was sworn to "preserve, protect, and defend." Nonetheless, let me talk to this issue, speaking for no individual save myself. When I laid my hand on the Bible to take the Oath ofOffice, I made my pledge to our Constitution. And as long as I have a voice and a vote in the U.S. Senate, I will fight the judicial despotism that stands like a behemoth over this great land.

At its best, the Court is the guardian of the Constitution, a body to which all Americans look for the ultimate protection of their rights. At its worst, it is home to a "let-them-eat-cake elite" who hold the people in the deepest disdain. By guiding the judicial selection process, we can begin to reestablish the constitutional balance envisioned by the Framers. It is also time for us to take a broader, comprehensive look at the alarming increase in activism on the Court.

As Chairman of the Senate Subcommittee on the Constitution, I intend to convene hearings in the months ahead to examine this disturbing trend. Americans should not sit idly by as our individual rights are surrendered. We should enlist the American people in an effort to rein in an out-of-control Court. Our forefathers who warned of judicial power left like "a boundless ocean" were right.

A half-century of unbridled judicial activism has made that danger clear to all but the intentionally ignorant. Experience is both the best and most expensive teacher. So, now that the costly lesson has been learned, "why stand we here idle" while the precious jewel of liberty is lost? Let us lend our voice to this cause. So that one day, in the not so distant future, we might once again say, "Here, Sir, the people govern." Thank you very much.

Senator John Ashcroft