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Dr. Coburn Calls for an End to Judicial Activism; Restoration of Core Constitutional Values and Principles

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Location: Washington, DC


Dr. Coburn Calls for an End to Judicial Activism; Restoration of Core Constitutional Values and Principles

U.S. Senator Tom Coburn, M.D. today released the following transcript of his opening statement for the confirmation hearing of Judge John Roberts:

Thank you, Mr. Chairman. It is a great honor to be here today to participate in the critically important job of selecting a new Chief Justice of the United States Supreme Court. I want to congratulate Judge Roberts on his nomination. I have greatly enjoyed meeting with him and am highly impressed by his distinguished record.

As we begin the confirmation process for one of the nine members of the highest court in this country, let me begin by saying that this process should not be divisive and politicized. Even more importantly, the Supreme Court should not become a political force that divides our Country. In other words, the Court should not take an activist role that moves it out of its appropriate Constitutional role. While we each have our own definition of judicial activism, essentially the Court will not become an activist court if it adheres to its appropriate role and does not attempt to legislate or create policy. In order to understand this concept, I believe that it behooves us to take a step back and look at the origin of the United States Judicial system.

The most logical place to begin is the United States Constitution. The first sentences of Articles I, II, and III clearly delineate who holds the legislative, executive, and judicial powers in the federal government, respectively. Article I begins, "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Article II begins, "[t]he executive Power shall be vested in a President of the United States of America." Finally, Article III begins,"[t]he 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." The roles of each branch of government could not be clearer.

All legislative power belongs to the Congress. The judiciary is given no legislative role. It is also given no executive power. Because of these limitations, Alexander Hamilton wrote in Federalist Paper #78 that "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." Hamilton further explained that the judiciary "has no influence over either the sword or the purse" and "must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." He believed that it was incontestable "that the judiciary is beyond comparison the weakest of the three departments of power." He was concerned that the judiciary needed to be protected from attacks by the executive or the legislative branches, not vice versa. However, Hamilton and the other founding fathers never anticipated an activist Judiciary like the one that has developed over recent decades.

The bottom line is that our Founding Fathers created three coequal branches of government. Because of this system, no branch of government should ever be completely satisfied. There will always be, and should always be, checks on each branch of government. Yet, look where we are today. Decades of judicial activism have created huge rifts in the social fabric of our country. Activist judges have usurped Federal and State legislators' responsibility to make decisions on critically important issues. Ivory tower elites have decided that they can better make important decisions about our country's social structure than the American people.

It is time for judicial activism to stop. It is time that we have judges who understand their constitutional role. I am deeply heartened in that I have read many statements by Judge Roberts that indicate that he understands the proper role of judges. He does not appear to desire to be a super-legislator. He understands how crucial it is that legislative bodies address important issues over which the public is sharply divided, and about which the Constitution is silent. He does not appear eager to turn to penumbras and invented substantive rights in order to promote his own policy agenda.

Judge Roberts appears to be a judicious, intelligent, and ethical man. I look forward to hearing his opening statement and hearing his responses to our questions. I hope that all of my colleagues will afford him the respect that he deserves as a human being and as a sitting appellate judge who was approved unanimously by the United States Senate just over two years ago.

The opportunity to sit on this committee at this time in our nation's history will be among my most important tasks as an elected official. When I ponder our country and its greatness, its weaknesses, and its potential, my heart aches for less divisiveness, less polarization, less finger pointing, less bitterness and less mindless partisanship, which, at times, sounds almost hateful to the ears of ordinary Americans.

The problems before our country are enormous. Our family structures have declined and our dependency on government has grown. The very heritage of America, which was born out of sacrifice by those who preceded us, is at extreme risk.

We are all Americans. We all want the greatest future for the generations to come, protection for the innocent and frail, support for those less fortunate. But most of all, we want an America that will live on as a beacon of hope, freedom, kindness, and opportunity.

I would hope that as we conduct these hearings over the next few days our tendency as politicians to be insensitive, bitter, discourteous, and political will surrender to the higher values that define America.

We have an opportunity to lead by example and restore the values and principles that bind us together. How we conduct ourselves and how we treat Judge Roberts can be a great start toward reconciliation in our country.

American is an idea, not just competing ideologies. I believe the genius of our founders is that they recognized that individual rights derive from a Creator, not from a King or the State. Our founders were concerned that if our rights derived from the State - or a Court - they could be taken away by the State or a Court. Our Constitution enshrines this idea and gives it meaning in the rule of law. This is why it is important for us to respect the Constitution.

I want one America; an America that continues to be divided is an America at risk. Our Country waits for its leaders at all levels to rise to the occasion of rebuilding our future by placing political fortunes last and constitutional principles first, and working diligently to reconcile each and every American to the freedom and responsibility that our republic demands. May God bless our efforts.

http://coburn.senate.gov/index.cfm?FuseAction=News.PressReleases&month=9&year=2005&id=97

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