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“PROTECTING THE INDEPENDENCE OF THE COURTS” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S4638-S4639 on May 9, 2005.
The publication is reproduced in full below:
PROTECTING THE INDEPENDENCE OF THE COURTS
Mr. BAUCUS. Mr. President, inscribed on the Justice Department building are the words: ``No free government can survive that is not based on the supremacy of law.''
Aristotle said: ``Where the laws are not supreme, there demagogues spring up.''
And Balzac wrote: ``The soul of liberty is love of law.''
It is a free and independent judiciary that ensures the supremacy of law. It is a free and independent judiciary that guards against the demagogue. It is a free and independent judiciary that protects the soul of liberty.
As Montesquieu wrote in The Spirit of the Laws: ``There is no liberty if the judiciary power be not separated from the legislative and the executive.''
And as George Washington wrote to John Jay in 1789, when Washington invited Jay to be Chief Justice: ``The Supreme Court must be recognized as the keystone of our political fabric.''
The effort by some to abridge the Senate's role in the confirmation of judges is nothing less than an effort to diminish the independence of the judiciary. That is the bottom line.
The Senate's rules and its paramount value of unlimited debate are central to preserving that independence of the judiciary. The Senate's involvement in the confirmation of judges helps to ensure that nominees have the support of a broad political consensus. The Senate's involvement helps to ensure that the President cannot appoint extreme nominees. The Senate's involvement helps to ensure that judges are more independent.
The Framers wanted the courts to be an independent branch of government, helping to exercise the Constitution's intricate system of checks and balances. The Senate's involvement in the confirmation of judges helps to ensure that the judiciary can be that more independent branch. And that independence of the judiciary, in turn, helps to ensure the protection of personal rights and liberties.
Just witness the Bill of Rights and the Constitution and the degree to which the court protects the Bill of Rights against improper encroachment by the legislative branch and in some cases by the executive branch.
The current fight over allowing the President to more easily gain confirmation of Supreme Court Justices and Appellate Court judges recalls another such effort by a President to affect the independence of the judiciary. It was in 1937, when President Franklin Roosevelt tried to pack the Supreme Court.
Roosevelt's effort to pack the Court failed in 1937 because enough Senators from his own party stood up to their President. They stood up for the Constitution that they loved.
One of those Senators was Montana's Burton K. Wheeler.
Until then, Burt Wheeler, a Democrat, had been an ardent champion of New Deal causes. But that changed with Roosevelt's effort to pack the Court.
In his book about Lyndon Johnson, Master of the Senate, the historian Robert Caro recounts what happened:
Burton K. Wheeler of Montana, long a leader in Senate fights for liberal causes, was coming to see that the Court plan implied an alteration in the whole balance of governmental power in favor of the White House. What, he wondered, would come next? He refused to fight for this cause. Wheeler was a senator other senators followed. Roosevelt sent his aide Thomas G. Corcoran to him with an offer. Its details would be a matter of dispute; at a very minimum, Wheeler would be allowed to give `advice' on the nominations of two of the six justices. Wheeler had accepted other offers from Corcoran before, but he refused to do so on the Court-packing plan. I'm going to fight it with everything I've got,' he told Corcoran. The President hurriedly invited his old friend Burt to dine at the White House that evening; the Senator replied that the President had better `save the plate for someone who persuaded more easily'.
And on the Senate floor, Senator Wheeler said:
I am saying to the Senator now that those connected with the administration have said that they wanted six men upon the Supreme Court whom they could trust, that they wanted men on the Court who would decide cases as they wanted them to be decided. That is the issue. It can be camouflaged as much as one wants to attempt to camouflage it, but the truth is that it is impossible to get away from the fact that this is a proposal to make the Supreme Court of the United States subservient to the executive branch of government.
Similar words could be said about the current effort to abridge the Senate's involvement in securing the independence of the Court. There are those connected with the current effort who want people ``on the Court who would decide cases as they want them to be decided.'' And it is impossible to deny that the effect of the current proposal would be
``to make the Supreme Court of the United States [more] subservient to the executive branch of government.''
There is no doubt about it. That is the intent. That is the result.
On the Senate floor, Senator Wheeler also said:
I say the step proposed is one of the most dangerous ever suggested, and it will set the most dangerous precedent of which I can conceive. You can bring political pressure to bear on me, you can say, `You you have to go along because of the fact that the administration wants it.' You can say that the privilege of appointing postmasters will not be accorded me; you can say that I will get no more projects for my State, worthy or unworthy; you can say what you please; but I say to Mr. Farley [the Postmaster General and Chairman of the Democratic National Committee] and to everyone else that, so far as I am concerned, I will vote against this proposal because it is morally wrong, morally unsound. It is a dangerous precedent, . . . it gets us nowhere, it is an expedient, it is a stopgap and dictatorial, and so far as I am concerned, if I am the only man in the Senate to do so, I shall vote against it.
Once again, similar words could be said about the current effort to abridge the Senate's involvement in securing the independence of the Court. ``[T]he step proposed is one of the most dangerous ever suggested.'' ``[I]t will set the most dangerous precedent . . . .''
``[I]t is morally wrong, morally unsound.'' ``[I]t gets us nowhere . .
. .'' ``[A]nd so far as I am concerned, if I am the only man in the Senate to do so, I shall vote against it.''
I only hope that enough Senators from the majority will have the courage that Burt Wheeler had, to stand up to their President, and stop this effort to undermine our Nation's cherished checks and balances.
In the latter half of the 19th Century, James Bryce was the Ambassador of the United Kingdom to the United States. In 1888, he wrote of America's independent judiciary:
The Supreme Court is the living voice of the Constitution .
. . . It is the guarantee of the minority who, when threatened by the impatient vehemence of the majority, can appeal to this permanent law, finding the interpreter and enforcer thereof in a Court set high above the assaults of faction.
For two centuries, the Senate's rules have protected the rights of the minority party, Democrats and Republicans alike, and thereby protected the independence of the judiciary. After two centuries, it would be a mistake to change those rules.
As the Senior Senator from Tennessee, the Majority Leader, wrote in a forward to a book published last year entitled Senate Procedure and Practice, and I quote:
[A]bove all, together the Senate's rules and practices form a whole. It is a whole that faithfully reflects the Framer's design and ambition for the body. It is a whole that remains true to the Senate's two paramount values: unlimited debate and minority rights.
[U]nlimited debate and minority rights.
That is what the leader wrote just a year ago: unlimited debate is one of the paramount values in the Senate's rules. Minority rights is the other one.
``[U]nlimited debate'' allows Senators to protect ``minority rights.'' The Senate's rules help to protect the independent judiciary. The Senate's rules help to ensure that no one party has absolute power. The Senate's rules help to give effect to the Framer's conception of checks and balances to protect the rule of law.
John Locke wrote in The Second Treatise on Government:
Wherever law ends, tyranny begins.
John F. Kennedy said:
Law is the strongest link between man and freedom.
And the Greek philosopher Heraclitus of Ephesus wrote:
The people should fight for their law as for their city wall.
I urge my Colleagues on the other side of the aisle to fight for this city wall. I urge them to defend the independence of the judiciary. One hallmark that sets the United States apart from most countries in the world is a strong, independent judiciary: not bullied by the legislative branch, not bullied by the executive branch; an independent judiciary.
I urge my colleagues to defend that independence and I urge them to reject this effort to overturn the Senate's rules.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. INHOFE. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
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