Floor Statement- Judicial Improvement Act

Mr. HATCH. Mr. President, I rise today to introduce, along with Senators THURMOND, ABRAHAM, and ASHCROFT, the Judicial Improvement Act of 1998; legislation that will restore public confidence in our democratic process by strengthening the constitutional division of powers between the Federal government and the States and between Congress and the Courts. On the whole, our federal judges are respectful of their constitutional roles, yet a degree of overreaching by some dictates that Congress move to more clearly delineate the proper role of Federal judges in our constitutional system. Increasingly, judges forget that the Constitution has committed to them the power to interpret law, but reserved to Congress the power to legislate.

This careful balancing of legislative and judicial functions is vital to our constitutional system. Regardless of how much we, as individuals, may approve of the results of a certain judge's decision, we must look beyond short-term political interests and remember the importance of preserving our Constitution.

Attempts by certain jurists to encroach upon legislative authority deeply concern me. I have taken the floor in this chamber on numerous occasions to recite some of the more troubling examples of judicial overreaching. I will not revisit them today. Suffice it to say that activism, and by that I mean a judge who ignores the written text of the law, whether from the right or the left, threatens our constitutional structure.

As an elected official, my votes for legislation are subject to voter approval. Federal judges, however, are unelected, hence they are, as a practical matter, unaccountable to the public. While tenure during good behavior, which amounts to life tenure, is important in that it frees judges to make unpopular, but constitutionally sound, decisions, it can become a threat to liberty when placed in the wrong hands. Alexander Hamilton, in the 78th Federalist, warned of the problem when judges "substitute their own pleasures to the constitutional intentions of the legislature." [Federalist No. 78, A. Hamilton]. Hamilton declared that "The courts must declare the sense of the law; and if they should be disposed to exercise Will instead of Judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body." [Ibid.]. And substituting the will of life-tenured federal judges for the democratically elected representatives is not what our Constitution's framers had in mind.

In an effort to avoid this long-contemplated problem, the proposed reform legislation we are introducing today will assist in ensuring that all three branches of the federal government work together in a fashion contemplated by, and consistent with, the Constitution. In addition, this legislation will ensure that federal judges are more respectful of the States.

This bill is not, as some would claim, an assault on the Federal Judiciary. Indeed, the overwhelming majority of our Federal judges would find repugnant the idea of imposing their personal views on the people in lieu of Federal or State law. However, there are currently some activist Federal judges improperly expanding their roles to quash the will of the people. These individuals view themselves as so-called platonic guardians, and believe they know what is in the people's best interest. Judges, however, are simply not entitled to deviate from their roles as interpreters of the law to create new law from the bench. If they believe otherwise, they are derelict in their duties and should resign to run for public office-at least then they would be accountable for their actions. It is time that we pass legislation that precludes any Federal judge from blurring the lines separating the legislative and judicial functions.

It is important to note that the effort to reign in judicial activism should not be limited simply to opposing potential activist nominees. While the careful scrutiny of judicial nominees is one important step in the process, a step reserved to the Senate alone, Congress itself has an obligation to the public to ensure that judges fulfill their constitutionally assigned roles and do not encroach upon those powers delegated to the legislature. Hence, the Congress performs an important role in bringing activist decisions to light and, where appropriate, publicly criticizing those decisions. Some view this as an assault upon judicial independence. That is untrue. It is merely a means of engaging in debate about a decision's merits or the process by which the decision was reached. Such criticism is a healthy part of our democratic system. While life tenure insulates judges from the political process, it should not, and must not, isolate them from the people.

In addition, the Constitution grants Congress the authority, with a few notable limitations, to set federal courts' jurisdiction. This is an important tool that, while seldom used, sets forth the circumstances in which the judicial power may be exercised. A good example of this is the 104th Congress' effort to reform the statutory writ of habeas corpus in an attempt to curb the seemingly endless series of petitions filed by convicted criminals bent on thwarting the demands of justice. Legislation of this nature, actually called for by the Chief Justice and praised in his recent annual report, is an important means of curbing activism.

To this end, I have chosen to introduce the Federal Judicial Improvement Act. It is a small, albeit meaningful, step in the right direction. Notably, this legislation will change the way federal courts review constitutional challenges to State and federal laws. The existing process allows a single federal judge to hear and grant applications regarding the constitutionality of State and federal laws as well as state ballot initiatives. In other words, a single federal judge can impede the will of a majority of the voters merely by issuing an order halting the implementation of a state referendum.

This proposed reform will accomplish the twin goals of fighting judicial activism and preserving the democratic process. This bill modestly proposes to respond to the problem of judicial activism by:

1. Requiring a three judge district court panel to hear appeals and grant interlocutory or permanent injunctions based on the constitutionality of the state law or referendum.

2. Placing time limitations on remedial authority in any civil action in which prospective relief or a consent judgment binds State or local officials.

3. Prohibiting a Federal court from having the authority to order State or local governments to increase taxes as part of a judicial remedy.

4. Preventing a Federal court from prohibiting State or local officials from reprosecuting a defendant. AND

5. Preventing a Federal court from ordering the release of violent offenders under unwarranted circumstances.

This reform bill is a long overdue effort to minimize the potential for judicial activism in the federal court system. Americans are understandably frustrated when they exercise their right to vote and the will of their elected representatives is thwarted by judges who enjoy life tenure. It's no wonder that millions of Americans don't think their vote matters when they enact a referendum only to have it enjoined by a single district court judge. By improving the way federal courts analyze constitutional challenges to laws and initiatives, Congress will protect the rights of parties to challenge unconstitutional laws while at the same time reduce the ability of activist judges to abuse their power and stifle the will of the people.

I want to take a few moments to describe how this legislation will curb the ability of federal judges to engage in judicial activism. The first reform would require a three judge panel to hear and issue interlocutory and permanent injunctions regarding challenged laws at the district court level. The current system allows a single federal judge to restrain the enforcement, operation and execution of challenged federal or state laws, including initiatives. There have been many instances where an activist judge has used this power to overturn a ballot initiative only to have his or her order overturned by a higher court years later.

For example, this change would have prevented U.S. District Court Judge Thelton Henderson from issuing an injunction barring enforcement of Proposition 209, a ballot initiative which prohibited affirmative action in California. Judge Henderson's order was subsequently overturned by the Ninth Circuit Court of Appeals, which ruled that the law was constitutional and that Judge Henderson thwarted the will of the people. A three judge panel would have prevented Henderson from acting on his own, and perhaps would have ruled correctly in the first place.

Now, I have no problem with a court declaring a law unconstitutional when it violates the written text of the Constitution. It is, however, inappropriate when a judge, like Judge Henderson, attempts to act like a super-legislator and imposes his own policy preference on the citizens of a State. Such an action weakens respect for the federal judiciary, creates cynicism in the voting public, and costs the government millions of dollars in legal fees. By requiring a three judge panel, the proposed law would eliminate the ability of one activist judge to unilaterally bar enforcement of a law or ballot initiative through an interlocutory or permanent injunction.

In addition, new time limits on injunctive relief would be imposed. A temporary restraining order would remain in force no more than 10 days, and an interlocutory injunction no more than 60 days. After the expiration of an interlocutory injunction, federal courts would lack the authority to grant any additional interlocutory relief but would still have the power to issue a permanent injunction. These limitations are designed to prevent the federal judiciary from indefinitely barring implementation of challenged laws by issuing endless injunctions, and facilitate the appeals process by motivating courts to speedily handle constitutional challenges.

We need only to look at the legal wrangling over Proposition 187 to see the need for these time constraints. The California initiative was overwhelmingly approved in 1994 with almost 60 percent of the vote and was designed to end all social services and other benefits to illegal aliens. The referendum was supported by voters who felt that they as taxpayers didn't have the ability to provide those who break immigration laws with free health, education and welfare. Opponents who lost at the ballot box went to federal court the next day and obtained an injunction prohibiting enforcement of 187, and to this day it has never been the law of the state of California.

U.S. District Judge Mariana Pfaelzer issued a preliminary injunction soon after the 1994 election and ruled way back in 1995 that part of 187 was unconstitutional. The injunction stayed in effect and she finally ruled on the rest of the initiative in March of this year, when she found that an additional portion of the initiative was unconstitutional. The proposed time limitation on injunctions would have been an incentive for the judge to rule promptly on the issues at hand, and precluded her from indefinitely delaying enforcement of the proposition without ruling. What this reform essentially does is encourage the federal judiciary to rule on the merits of a case, and not use injunctions to keep a challenged law from going into effect or being heard by an appeals court through the use of delaying tactics.

The bill also proposes to require that a notice of appeal must be filed not more than fourteen days after the date of an order granting an interlocutory injunction and the appeals court would lack jurisdiction over an untimely appeal of such an order. The court of appeals would apply a de novo standard of review before reconsidering the merits of granting relief, but not less than 100 days after the issuance of the original order granting interlocutory relief. If the interlocutory order is upheld on appeal, the order would remain in force no longer than 60 days after the date of the appellate decision or until replaced by a permanent injunction.

The bill also proposes limitations on the remedial authority of federal courts. In any civil action where prospective relief or a consent judgment binds state and local officials, relief would be terminated upon the motion of any party or intervener:

a) five years after the date the court granted or approved the prospective relief;
b) two years after the date the court has entered an order denying termination of prospective relief; or
c) in the case of an order issued on or before the date of enactment of this act, two years after the date of enactment.

Parties could agree to terminate or modify an injunction before relief is available if it otherwise would be legally permissible. Courts would promptly rule on motions to modify or terminate this relief and in the event that a motion is not ruled on within 60 days, the order or consent judgment binding State and local officials would automatically terminate.

However, prospective relief would not terminate if the federal court makes written findings based on the record that relief remains necessary to correct an ongoing violation of a federal right, extends no further than necessary to correct the violation and is the least intrusive means available to correct the violation of a federal right.

This measure would also prohibit a federal court from having the authority to order a unit of state or local government to increase taxes as part of a judicial remedy. When an unelected Federal judge has the power to order tax increases, this results in taxation without representation. Americans have fought against unfair taxation since the Revolutionary War, and this bill would prevent unfair judicial taxation and leave the power to tax to elected representatives of the people.

The bill would not limit the authority of a Federal court to order a remedy which may lead a unit of local or State government to decide to increase taxes. A Federal court would still have the power to issue a money judgment against a State because the court would not be attempting to restructure local government entities or mandating a particular method or structure of State or local financing. This bill also doesn't limit the remedial authority of State courts in any case, including cases raising issues of federal law. All the bill does is prevent Federal courts from having the power to order elected representatives to raise taxes. This is moderate reform which prevents judicial activism and unfair taxation while preserving the Federal courts power to order remedial measures.

Another important provision of the bill would prevent a federal court from prohibiting State or local officials from re-prosecuting a defendant. This legislation is designed to clarify that federal habeas courts lack the authority to bar retrial as a remedy.

This part of the legislation was co-sponsored by Congressman PITTS and Senator SPECTER in response to a highly-publicized murder case in the Congressman's district. Sixteen year old Laurie Show was harassed, stalked and assaulted for six months by the defendant, who had a vendetta against Show for briefly dating the defendant's boyfriend. After luring Show's mother from their residence, the defendant and an accomplice forcefully entered the Show home, held the victim down, and slit her throat with a butcher knife, killing her. After the defendant was convicted in State court, she filed a habeas petition in which she alleged prosecutorial misconduct and averred her actual innocence. Federal district court judge Stewart Dalzell not only accepted this argument and released the defendant, but he also took the extraordinary step of barring state and local officials from reprosecuting the woman. Judge Dalzell stated that the defendant was the "first and foremost victim of this affair."

Congress has long supported the ability of a Federal court to fashion creative remedies to preserve constitutional protections, but the additional step of barring state or local officials from reprosecution is without precedent and an unacceptable intrusion on the rights of states. This bill, if enacted, will prevent this type of judicial activism from ever occurring again.

This bill also contains provisions for the termination of prospective relief when it is no longer warranted to cure a violation of a federal right. Once a violation that was the subject of a consent decree has been corrected, a consent decree must be terminated unless the court finds that an ongoing violation of a federal right exists, the specific relief is necessary to correct the violation of a Federal right, and no other relief will correct the violation of the Federal right. The party opposing the termination of relief has the burden of demonstrating why the relief should not be terminated, and the court is required to grant the motion to terminate if the opposing party fails to meet its burden. These provisions prevent consent decrees from remaining in effect once a proper remedy has been implemented, thereby preventing judges from imposing consent decrees that go beyond the requirements of law.

The proposed reform law also includes provisions designed to dissuade prisoners from filing frivolous and malicious motions by requiring that the complainant prisoner pay for the costs of the filings. These provisions will undoubtedly curb the number of frivolous motions filed by prisoners and thus, relieve the courts of the obligation to hear these vacuous motions designed to mock and frustrate the judicial system.

Finally, the bill proposes to prevent federal judges from entering or carrying out any prisoner release order that would result in the release from or nonadmission to a prison on the basis of prison conditions. This provision will effectively preclude activist judges from circumventing mandatory minimum sentencing laws by stripping the federal judges of jurisdiction to enter such orders. This will ensure that the tough sentencing laws approved by voters to keep murderers, rapists, and drug dealers behind bars for lengthy terms will not be ignored by activist judges who improperly use complaints of prison conditions filed by convicts as a vehicle to release violent offenders back on our streets.

For an example of this activism, I offer the rulings of a jurist whom I have mentioned before, Federal Judge Norma Shapiro, who sits on the Federal bench in Philadelphia. Judge Shapiro has a different view of what prison life should be: a view completely divergent from the view of the general public and, most importantly, the law.

Judge Shapiro used complaints filed by inmates to impose her activist views and wrestle control of the prison system by setting a cap on the number of prisoners that can be incarcerated in Pennsylvania. When faced with the opportunity to extend her judicial powers and seize control of the prison system, Judge Shapiro jumped at the chance and the results have been disastrous.

The cap imposed by Judge Shapiro forced the release of 500 prisoners a week. Because of this cap, in a time period of 18 months alone, 9,732 arrestees were released on Philadelphia. Of course, many were re-arrested on other charges, including 79 murders, 90 rapes, 701 burglaries, 959 robberies, 1,113 assaults, 2,215 drug offenses and 2,748 thefts. [Philadelphia Inquirer]. Releasing dangerous criminals on to the streets to reek havoc and violence is the ultimate slap in the faces of law enforcement and justice. How can we expect law enforcement to provide protection and safe streets if at every turn there is a Judge Shapiro waiting anxiously for the chance to release lawlessness on our communities? This reform bill will prevent Judge Shapiro and other like-minded judges from ever endangering families and children in our communities again by preventing these Judges from releasing prisoners based on prison conditions.

Prison life is not supposed to be pleasant or comfortable; rather, it is supposed to serve as a deterrent to future crime. I would be worried if no prisoners were filing complaints because they actually found prison life to be acceptable. But it seems that some activist judges are willing to believe any prisoner complaint equates or rises to the level of a constitutional violation. It seems that in some courtrooms, if a prisoner simply files a complaint alleging prison conditions aren't laudable or praiseworthy, chances are good that that prisoner, and many others, will be released from custody early, sometimes immediately, thanks to the misguided activism of the judge hearing the complaint. This is absolutely unacceptable and this proposed law will put a stop to the agendas of some activist judges who believe every argument that the ACLU and guilty, but bored, convicts offer up.

This overdue legislation is a measured effort to improve the way the federal judiciary works. It fights judicial activism and actually improves the way constitutional appeals are handled. This reform bill is a sensible, balanced attempt to promote judicial efficiency and to prevent egregious judicial activism. I encourage my colleagues to act swiftly on this needed reform.