Judicial Activism: Assessing the Impact"

Mr. Chairman and Members of the Committee:

I appreciate your invitation for me to discuss what I believe is the most important issue in contemporary American self-government: the role of the judiciary. As you know, in constitutional and statutory interpretation, the differences of opinion between conservative interpretivists, such as Justices Scalia and Thomas, and liberal proponents of a so-called living constitution, such as retired Justice Brennan, are sharp and profound. My purpose today is to address common characteristics of judicial activism that, in my judgment, demonstrate its threat to constitutional democracy.

In the Office of Attorney General of Alabama, I have witnessed three aspects of judicial activism that burden our state government and our citizens everyday. The first aspect is the use of the judiciary to restructure political institutions in ways that invariably expand the size of government. The second aspect is the judicial micromanagement of state governmental operations. The third aspect is the revision of history to further an agenda that is hostile to any acknowledgement of God in our public life. I will address each of these aspects in turn.

The use of judicial power to restructure, and invariably expand, the size of state and local governments has occurred in literally dozens of federal suits in Alabama. Three years ago, a federal district judge in Montgomery entered a judgment, with the approval of the Department of Justice, that restructured our entire state appellate court system. Incredibly, the then Attorney General consented to the judgment. The judgment created six new judgeships -- two on the court of criminal appeals, two on the court of civil appeals, and two on the supreme court -- at a cost of 1.8 million dollars a year to the taxpayers of Alabama. The federal judgment also required that these judgeships not be filled by statewide election, as required by the Constitution of Alabama, but by gubernatorial appointment from three nominees selected by a five member nominating commission. Three members of the nominating commission were required to be African-American. Thus, this judgment sent the destructive message that race somehow matters in the administration of justice.

All of these requirement were imposed in the name of the Voting Rights Act of 1965. An important element of this litigation was the abuse of federal power by the U.S. Department of Justice under Section 5 of the Act. The act, of course, was passed to empower minority voters in the exercise of the franchise, but the federal court turned the act on its head and wielded its judicial power to deprive all voters of the right to select several public officers. Fortunately, this unlawful judgment was reversed by the Eleventh Circuit Court of Appeals last year based on arguments advanced by then Attorney General Jeff Sessions, who assigned the case to me.

The judgment of the district court, however, was based on earlier ruling of the same district court that restructured and expanded the size of several local governmental bodies, particularly county commissions and school boards. Those earlier rulings are now being tested in several cases, but there is resistance from several of those officials who now hold the judicially created offices.

A less dramatic but equally intrusive abuse of judicial power involves judicial micromanagement of governmental operations. Two weeks ago, I filed motions on behalf of the Commissioner of the Department of Corrections in seventeen different federal cases in which the courts regulate the daily operations of state prisons and county jails. These orders require a host of privileges for prisoners that, in some instances, far exceed the rights of free citizens, including movies every Friday and Saturday nights, cable television, basketball, ping pong, softball, horeshoes, fitness training, hourly visits from law clerks, extensive law libraries, and climate controls with an allowed range of inside temperatures for summer and winter. When these orders were entered, the courts made no findings that the practices about which the prisoners complained were unconstitutional. Congress recognized the scope of this problem last year when it passed the Prison Litigation Reform Act, which greatly enhances our ability to undo these intrusive orders. Our state government still faces, however, several other cases in which federal courts intrude everyday into the operations of state departments and local governments.

A third but different problem of judicial activism is the revision of our constitutional history to advance a political agenda that is hostile to any acknowledgement of God by government. For the last two years our state has witnessed a heated battle to banish a display of the Ten Commandments from a state courtroom and to end a longstanding practice of invocations to begin the sessions where jurors are administered their oath. It is astounding that this effort can receive such serious attention when one considers the lonstanding tradition of acknowledgement of God by government. For example, there are at least three different depictions of the Ten Commandments in the courtroom where the Supreme Court of the United States hears oral arguments and every session of every federal court begins with the invocation, "God save the United States and this Honorable Court." Yet activist federal court decisions make this threat to our state courtroom traditions real.

In addressing the problem of judicial activism, I urge this Committee to focus on at least three remedies available to your branch in defending your right to make federal law. First, the importance of your role of advice and consent in judicial nominations cannot be overstated. You should question nominees to ensure their fidelity to the right of the people to govern themselves. Second, your ability to monitor and curtail abuses of judicial power, as was done in the Prison Litigation Reform Act of 1996, can greatly assist officials of state and local governments, who must comply with burdensome and expensive decrees that often impede the performance of important state functions. I encourage you to consider seriously, for example, the repeal or amendment of section 5 of the Voting Rights Act, which is an affront to federalism and an expensive burden that has far outlived its usefulness, and consider modifying other provisions of the Act that have led to extraordinary abuses of judicial power. Finally, you must continue to lead a public discussion about judicial activism and the erosion of self-government, as you are doing today in this hearing. In that vein, I urge you to adopt the resolution of Senators Shelby and Sessions that supports the display of the Ten Commandments in public buildings.