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SENATOR JOHN
CRONYN
Floor Speech: Courthouse Violence
Floor
Speech: The Judiciary
On Monday, April 4, 2005 U.S. Sen. John
Cornyn (R-Texas) formerly a justice on the Texas Supreme Court
raised eyebrows with his speech on the Senate floor. He suggested
there was a connection between “political decisions” by some judges
and incidents of courthouse violence. . . . Cornyn, cited recent
cases of violence against judges and said he wondered "whether
there may be some connection between the perception in some quarters
on some occasions where judges are making political decisions yet
are unaccountable to the public, that it builds up and builds up and
builds up to the point where some people ... engage in violence."
Read the full text of his speech "The Judiciary."
The Democrats became
incensed and Sen. Cronyn gave a speech on Courthouse Violence.
 Floor
Speech:
Courthouse Violence
The PRESIDING
OFFICER. The Senator from Texas.
Mr. CORNYN. Mr.
President, thank you. I appreciate the opportunity for Senator
Durbin and me to speak for a few minutes.
The purpose for
my rising is to follow up on some remarks I made yesterday, Monday,
on the floor of the Senate. The full transcript of those remarks,
which has to do with judges and recent decisions of the U.S. Supreme
Court is available, of course, in the Congressional Record, but it
is also available on my official Web site for anybody who would care
to read it.
As a former
judge myself for 13 years, who has a number of close personal
friends who still serve on the bench today, I am outraged by recent
acts of courthouse violence. I certainly hope no one will construe
my remarks on Monday otherwise. Considered in context, I don't think
a reasonable listener or reader could.
As I said on
Monday, there is no possible justification for courthouse violence.
Indeed, I met with a Federal judge, a friend of mine in Texas, this
past week, to make sure we are doing everything we can to help
protect our judges and courthouse personnel from further acts of
violence. And like my colleague from Illinois, I personally know
judges and their families who have been victims of violence, and
have grieved with those families. But I want to make one thing
clear. I am not aware of any evidence whatsoever linking recent acts
of courthouse violence to the various controversial rulings that
have captured the Nation's attention in recent years.
My point was,
and is, simply this: We should all be concerned that the judiciary
is losing respect that it needs to serve the interests of the
American people well. We should all want judges who interpret the
law fairly -- not impose their own personal views on the Nation. We
should all want to fix our broken judicial confirmation process. And
we should all be disturbed by overheated rhetoric about the
judiciary from both sides of the aisle. I regret that my remarks
have been taken out of context to create a wrong impression about my
position, and possibly be construed to contribute to the problem
rather than to a solution. Our judiciary must not be politicized.
Rhetoric about the judiciary and about judicial nominees must be
toned down. Our broken judicial confirmation process must be fixed
once and for all.
Thank you, Mr.
President.
I yield the
floor.
Monday, April 4,
2005
Floor Speech:
The Judiciary
The ACTING
PRESIDENT pro tempore. The Senator from Texas.
Mr. CORNYN.
Mr. President, I wanted to talk a little bit about our courts, and
specifically our Federal courts, and even more specifically the
United States Supreme Court.
Before I
start, let me just say I have the greatest respect for our
judiciary, the men and women who wear black robes -- whether it is
on a municipal court or a county court or a district court like I
served on in San Antonio, Bexar County, TX, for 6 years, or those
who work on appellate courts, whether State or Federal, like I did
on the Texas Supreme Court for 7 years.
For 13 years
of my professional life, I have worn a black robe, judging cases,
first presiding over the jury trials, and coming to have a great
deal of respect not just for those judges but for men and women who
serve on juries and decide hard cases, cases which, perhaps, they
would prefer not have to sit in judgment of, some involving even the
death penalty.
I don't want
anyone to misunderstood what I am going to say as being a blanket
criticism of either the judiciary or the U.S. Supreme Court, in
particular. From my own experience, judges, although they have
important jobs to do, are no different than you and me. What I mean
is they are mere mortals, subject to the same flashes of mediocrity,
sometimes making mistakes, and sometimes displaying flights of
brilliance. These are not, as some people have suggested, high
priests able to discern great truths that you and I are unable to
figure out. They are generally very intelligent, with outstanding
educational pedigrees, but none of us have agreed that judges,
particularly Federal judges, can be or should be a law unto
themselves.
Federal
judges are appointed subject to advice and consent provisions of the
Constitution for a lifetime. They do not run for election. They do
not have to raise money as do other politicians. I know those who do
envy them that. But the idea is they are supposed to use that
independence in order to be impartial umpires of the law -- it is
called balls and strikes -- and they should use that independence
that has been given to them in order to resist politics, in order to
resist those who would suggest that in order to be popular you must
subscribe to a particular way of thinking or a particular social or
political or ideological agenda.
Given that
framework that the Founding Fathers agreed was so important and that
I know we all agree is important today to preserve that independence
so as to preserve that judicial function, it causes a lot of people,
including me, great distress to see judges use the authority they
have been given to make raw political or ideological decisions. No
one, including those judges, including the judges on the U.S.
Supreme Court, should be surprised if one of us stands up and
objects.
I make clear
I object to some of the decisionmaking process that is occurring at
the U.S. Supreme Court today and now. I believe insofar as the
Supreme Court has taken on this role as a policymaker rather than an
enforcer of political decisions made by elected representatives of
the people, it has led to increasing divisiveness and bitterness of
our confirmation fights that is a very current problem this body
faces today. It has generated a lack of respect for judges
generally. Why should people respect a judge for making a policy
decision born out of an ideological conviction any more than they
would respect or deny themselves the opportunity to disagree if that
decision were made by an elected representative? Of course the
difference is they can throw the rascal out and we are sometimes
perceived as the rascal if they do not like the decisions made, but
they cannot vote against a judge, because judges are not elected.
They serve for a lifetime on the Federal bench.
I believe the
increasing politicization of the judicial decisionmaking process at
the highest levels of our judiciary has bred a lack of respect for
some of the people who wear the robe. That is a national tragedy.
Finally, I
don't know if there is a cause-and-effect connection, but we have
seen some recent episodes of courthouse violence in this country --
certainly nothing new; we seem to have run through a spate of
courthouse violence recently that has been on the news. I wonder
whether there may be some connection between the perception in some
quarters on some occasions where judges are making political
decisions yet are unaccountable to the public, that it builds up and
builds up to the point where some people engage in violence,
certainly without any justification, but that is a concern I have
that I wanted to share.
We all are
students of history in this Senate, we all have been elected to
other bodies and other offices, and we are all familiar with the
founding documents, the Declaration of Independence, the
Constitution itself. We are familiar with the Federalist Papers that
were written in an effort to get the Constitution ratified in New York State.
Alexander Hamilton, apropos of what I want to talk about, authored a
series of essays in the Federalist Papers that opine that the
judicial branch would be what he called the "least dangerous" branch
of government. He pointed out that the judiciary lacked the power of
the executive branch, the White House, for example, in the Federal
Government and the political passions of the legislature. In other
words, the Congress. Its sole purpose -- that is, the Federal
judiciary's sole purpose -- was to objectively interpret and apply
the laws of the land and in such a role its job would be limited.
Let me
explain perhaps in a little greater detail why I stand up here and
take my colleagues' time to criticize some of the decisionmaking
process being made by some Federal courts in some cases. This is not
a blanket condemnation. I hope I have made it clear that I respect
the men and women who wear the robe, but having been a judge myself
I can state that part of the job of a judge is to criticize the
reasoning and the justification for a particular judgment. I
certainly did that daily as a state supreme court justice. And I
might add that people felt free to criticize my decisions, my
reasoning and justification for the judgments I would render. That
is part of the give and take that goes into this. I make clear my
respect generally for the Federal judiciary, including the U.S.
Supreme Court.
I am troubled
when I read decisions such as Roper v. Simmons. This is a recent
decision from March 1, 2005. Let me state what that case was about.
This was a case involving Christopher Simmons. Christopher Simmons
was seven months shy
of his 18th birthday when he murdered Shirley Crook. This is a
murder that he planned to commit. He told his coconspirators before
committing the crime, this 17-year-old who was 7 months shy of his
18th birthday, he encouraged his friends to join him, assuring them
that they could "get away with it," because they were minors.
Christopher Simmons and his cohorts broke into the home of an
innocent woman, bound her with duct tape and electrical wire, and
then threw her off a bridge, alive and conscious, resulting in her
subsequent death.
Those facts
led a jury in Missouri,
using the law in Missouri that the people of Missouri had chosen for
themselves through their elected representatives, to convict him of
capital murder and to sentence him to death.
Well, this
17-year-old boy, or young man I guess is what I would call him,
Christopher Simmons, challenged that jury verdict and that
conviction all the way through the State courts of Missouri and all
the way to the U.S. Supreme Court. And the United States Supreme
Court, on March 1, 2005,
held that Christopher Simmons or any other person in the United States
of America
who is under the age of 18 who commits such a heinous and
premeditated and calculated murder, cannot be given the death
penalty because it violates the U.S. Constitution.
In so
holding, the U.S. Supreme Court said: We are no longer going to
leave this in the hands of jurors. We do not trust jurors. We are no
longer going to leave this up to the elected representatives of the
people of the respective States, even though 20 States, including
Missouri, have the possibility at least of the death penalty being
assessed in the most aggravated types of cases, involving the most
heinous crimes, against someone who is not yet 18.
This is how
the Court decided to do that. First, it might be of interest to my
colleagues that 15 years earlier the same U.S. Supreme Court,
sitting in Washington, across the street from this Capitol where we
are standing here today, held just the opposite. Fifteen years ago,
the U.S. Supreme Court held that under appropriate circumstances,
given the proper safeguards, in the worst cases involving the most
depraved and premeditated conduct, a jury could constitutionally
convict someone of capital murder and sentence them to the death
penalty. But, 15 years later, on March 1, they said what was
constitutional the day before was no longer constitutional, wiping
20 States' laws off the books and reversing this death penalty
conviction for Christopher Simmons.
What I want
to focus on now is the reasoning that Justice Anthony Kennedy,
writing for the U.S. Supreme Court, in a 5-to-4 decision, used to
reach that conclusion.
First,
Justice Kennedy adopted a test for determining whether this death
penalty conviction was constitutional. The test -- this ought to
give you some indication of the problems we have with the Supreme
Court as a policymaker with no fixed standards or objective
standards by which to determine its decisions to make its judgments.
The Court embraced a test that it had adopted earlier referring to
the "evolving standards of decency that mark the progress of a
maturing society." Let me repeat that. The test they used was the
"evolving standards of decency that mark the progress of a maturing
society."
I would think
any person of reasonable intelligence, listening to what I am
saying, would say: What was that? How do you determine those
"evolving standards"? And if they are one way on one day, how do
they evolve to be something different the next day? And what is a
"maturing society"? How do we determine whether society has matured
or not? I think people would be justified in asking: Isn't that
fancy window dressing for a preordained conclusion? I will let them
decide.
Well, it does
not get much better because then the Court, in order to determine
whether the facts met that standard, such as that this death penalty
could not stand, or these laws in 20 States cannot stand, looked to
what they called an "emerging consensus." Well, any student of high
school civics knows we have a Federal system, and the national
Government does not dictate to the State governments all aspects of
criminal law. In fact, most criminal law is decided in State courts
in the first place. But, nevertheless, the Supreme Court of the
United
States,
in a 5-to-4 decision, looked for an "emerging consensus," and in the
process wiped 20 States' laws off the books. I will not go into the
details of how they found a consensus, but suffice it to say it
ought to be that in a nation comprised of 50 separate sovereign
State governments, where 20 States disagree with the Court on its
decision that wipes those 20 States' courts laws off the books, it
can hardly be called a consensus, if language is to have any
meaning.
Secondly, the
Court said: We will also look to our own decisions, our own judgment
over the propriety of this law. In other words, they are going to
decide because they can, because basically their decisions are not
appealable, and there is nowhere else to go if they decide this law
is unconstitutional. The American people, the people of Missouri,
the people who support, under limited circumstances, under
appropriate checks and balances, the death penalty for people who
commit heinous crimes under the age of 18 are simply out of luck;
this is the end of the line.
Well, finally
-- and this is the part I want to conclude on and speak on for a few
minutes -- the Court demonstrated a disconcerting tendency to rely
on the laws of foreign governments and even treaties in the
application and enforcement of U.S. law. This is a trend that did
not start with the Roper case, but I did want to mention it in that
connection.
But if the
U.S. Supreme Court is not going to look to the laws of the United
States, including the fundamental law of the United States which is
the Constitution, but interpreting what is and is not constitutional
under the U.S. Constitution by looking at what foreign governments
and foreign laws have to say about that same issue, I fear that bit
by bit and case by case the American people are slowly losing
control over the meaning of our laws and the Constitution itself. If
this trend continues, foreign governments may have a say in what our
laws and our Constitution mean and what our policies in America
should be.
Let me
digress a second to say this is as current as the daily news. As a
matter of fact, I saw in the New York Times on April 2 an article
concerning Justice Ginsburg, a member of that five-member majority
in the Roper case. The headline is: "Justice Ginsburg Backs Value of
Foreign Law." Reading from this story, written by Anne Kornblut, it
says:
In her
speech, Justice Ginsburg criticized the resolutions in Congress and
the spirit in which they were written.
She is
referring to a resolution I have filed, and I sent out a "dear
colleague" today expressing concerns about this issue. But she said:
Although I
doubt the resolutions will pass this Congress --
I don't know
where she gets her information. I think there is a lot of positive
sentiment in favor of what the resolution says, and I will talk
about that in a minute.
Although I
doubt the resolutions will pass this Congress, it is disquieting
that they have attracted sizable support.
I am a little
surprised that a sitting U.S. Supreme Court Justice would engage in
a debate about a current matter, which has yet to be decided by the
Senate, which is a resolution expressing concern about the use of
foreign laws and treaties to interpret what the U.S. Constitution
should mean. I am a little surprised by it.
In a series
of cases over the past few years our courts have begun to tell us
that our criminal laws and our criminal policies are informed not
just by our Constitution and by the policy preferences and
legislative enactments of the American people through their elected
representatives, but also by the rulings of foreign courts. I
understand it is hard to believe, and most people listening to what
I am saying are asking themselves: Could this be true? Is it
possible? I know it is hard to believe, but in a series of recent
cases, including the Roper case, the U.S. Supreme Court has actually
rejected its own prior decisions in part because a foreign
government or court has expressed disagreement with the conclusion
they had reached.
Until
recently the U.S. Supreme Court had long held that under appropriate
safeguards and procedures, the death penalty may be imposed by the
States regardless of the IQ of the perpetrator. The Court had
traditionally left this issue untouched as a matter for the American
people and each of their States to decide, as the Court said in a
case called Penry V. Lynaugh in 1989. Yet because some foreign
governments had frowned upon that ruling, the U.S. has now seen fit
to take that issue away from the American people entirely. In 2002,
in a case called Atkins v. Virginia,
the U.S. Supreme Court held that the Commonwealth
of Virginia could no longer apply its criminal justice system and
its death penalty to an individual who had been duly convicted of
abduction, armed robbery, and capital murder because of the
testimony that the defendant was mildly mentally retarded. The
reason given for this reversal of the Court's position that it had
taken in 1989 to 2002? In part it was because the Court was
concerned about "the world community" and the views of the European
Union.
Take another
example. The U.S. Supreme Court had long held that the American
people in each of the States have the discretion to decide what
kinds of conduct that have long been considered immoral under
longstanding legal traditions should or should not remain illegal.
In Bowers v. Hardwick in 1986, the Court held that it is up to the
American people to decide whether criminal laws against sodomy
should be continued or abandoned. Yet once again because foreign
governments have frowned upon that ruling, the U.S. Supreme Court
saw fit in 2003, in Lawrence v. Texas, to hold that no State's
criminal justice system or its criminal justice laws could be
written in a way to reflect the moral convictions and judgments of
their people.
The reason
given for this reversal from 1986 to 2002? This time the Court
explained that it was concerned about the European Court of Human
Rights and the European Convention on Human Rights.
I have
already mentioned the case of Roper v. Simmons. But most recently,
on March 28, the U.S. Supreme Court heard oral arguments in a case
that will consider whether foreign nationals duly convicted of the
most heinous crimes will nevertheless be entitled to a new trial for
reasons that those individuals did not even bother to bring up
during their trial. As in the previous examples, the Supreme Court
has already answered this issue but decided to revisit it once
again. In 1998, in Breard v. Green, the Court made clear that
criminal defendants, like all parties in lawsuits, may not sit on
their rights and must bring them up at the time the case is going on
or be prohibited from raising those issues later on, perhaps even
years later. That is a basic principle of our legal system. In this
case, the Court has decided to revisit whether an accused who
happens to be a foreign national, subject to the Vienna Convention
on Consular Relations, should be treated differently from any other
litigant in our civil litigation systems and in State and Federal
courts or in the Federal system reviewing State criminal justice
provisions.
Even this
basic principle of American law may soon be reversed. Many legal
experts predict that in the upcoming case of Medellin v. Dretke, the
Court may overturn itself again for no other reason than that the
International Court of Justice happens to disagree with our
longstanding laws and legal principles. This particular case
involves the State of Texas. I have filed an amicus brief, a friend
of the court brief, in that decision, asking the Court to allow the
people of Texas to determine their own criminal laws and policies
consistent with the U.S. States Constitution and not subject to the
veto of the Vienna Convention on Consular Rights or the decision of
some international court.
There is a
serious risk, however, that the Court will ignore Texas law, will
ignore U.S. law, will reverse itself, and decide in effect that the
decisions of the U.S.
Supreme Court
can be overruled by the International Court of Justice.
I won't dwell
on this any longer, but suffice it to say there are other examples
and other decisions where we see Supreme Court Justices citing legal
opinions from foreign courts across the globe as part of the
justification for their decisions interpreting the U.S.
Constitution. These decisions, these legal opinions from foreign
courts range from countries such as India, Jamaica, Zimbabwe, and
the list goes on and on.
I am
concerned about this trend. Step by step, with each case where this
occurs, the American people may be losing their ability to determine
what their laws should be, losing control in part due to the
opinions of foreign courts and foreign governments. If this happens
to criminal law, it can also spread to other areas of our Government
and our sovereignty. How about our economic policy, foreign policy?
How about our decisions about our own security?
Most
Americans would be disturbed if we gave foreign governments the
power to tell us what our Constitution means. Our Founding Fathers
fought the Revolutionary War precisely to stop foreign governments
-- in this case, Great Britain -- from telling us what our laws
should be or what the rules should be by which we would be governed.
In fact, ending foreign control over American law was one of the
very reasons given for our War of Independence.
The
Declaration of Independence itself specifically complains that the
American Revolution was justified in part because King George "has
combined with others to subject us to a jurisdiction foreign to our
Constitution and unacknowledged by our laws."
After a long
and bloody revolution, we earned the right at last to be free of
such foreign control. Rather, it was we the people of the United
States who then ordained and established a Constitution of the
United States and our predecessors, our forefathers, specifically
included a mechanism by which we the people of the United States
could change it by amendment, if necessary.
Of course,
every judge who serves on a Federal court swears to an oath to
"faithfully and impartially discharge and perform all the duties
incumbent upon me...under the Constitution and laws of the United
States, so help me God."
As you can
tell, I am concerned about this trend. I am concerned that this
trend may reflect a growing distrust amongst legal elites -- not
only a distrust of our constitutional democracy, but a distrust of
the American people and America itself.
As every high
school civics student knows, the job of a judge is pretty
straightforward. Judges are supposed to follow the law, not rewrite
it. Judges are supposed to enforce and apply political decisions
that are made in Congress and that are signed into law by the
President of the United States. Judges are not supposed to make
those decisions or substitute their own judgments or those political
judgments hashed out in the legislative process in this body and
this Capitol. The job of a judge is to read and obey the words
contained in our laws and in our judicial precedents -- not the laws
and precedents of foreign governments, which have no authority over
our Nation or the American people.
I am
concerned that some judges who simply don't like our laws -- and
they don't like the decisions made by Americans through their
elected representatives here about what those laws should be -- are
using this as another way to justify their decision to overreach. So
it appears they would rather rewrite the law from the bench. What is
especially disconcerting is that some judges today may be departing
so far from American law, from American principles, and from
American traditions that the only way they can justify their rulings
is to cite the law of foreign countries, foreign governments, and
foreign cultures, because there is nothing left for them to cite for
support in this country.
Citing
foreign law in order to overrule U.S. policy offends our democracy
because foreign lawmaking is obviously in no way accountable to the
American people. Here again -- and I started out by saying I am not
condemning all Federal judges; I have great respect for the Federal
judiciary -- I am not condemning international law. Obviously, there
is a way by which international law can apply to the United States,
and that is through the treaty process, which is, of course, subject
to ratification by the U.S. Congress.
There is an
important role for international law to play in our system, but it
is a role that belongs to the American people through the political
branches -- the Congress and the President -- to decide what that
role should be and indeed what that law should be; it is not a role
given to our courts. Article I of the U.S. Constitution gives the
Congress, not the courts, the authority to enact laws punishing
"Offenses against the Law of Nations," and article II of the
Constitution gives the President the power to ratify treaties,
subject to the advice and consent and the approval of two-thirds of
the Senate. Yet our courts appear to be, in some instances,
overruling U.S. law by citing foreign law decisions in which the
U.S. Congress had no role and citing treaties that the President and
the U.S. Senate have refused to approve.
To those who
might say there is nothing wrong with simply trying to bring U.S.
laws into consistency with other nations, I say this: This is not a
good faith attempt to bring U.S. law into global harmony. I fear
that, in some instances, it is simply an effort to further a
political or ideological agenda, because the record suggests that
this sudden interest in foreign law is more ideological than legal;
it seems selective, not principled.
U.S.
courts are following foreign law, it seems, inconsistently -- only
when needed to achieve a particular outcome that a judge or justice
happens to desire but that is flatly inconsistent with U.S.
law and precedent. Many countries, for example, have no exclusionary
rule to suppress evidence that is otherwise useful and necessary in
a criminal case. Yet our courts have not abandoned the exclusionary
rule in the United States, relying upon the greater wisdom and
insight of foreign courts and foreign nations. I might add that very
few countries provide abortion on demand. Yet our courts have not
abandoned our Nation's constitutional jurisprudence on that subject.
Four Justices of the Supreme Court believe that school choice
programs that benefit poor urban communities are unconstitutional if
parochial schools are eligible, even though other countries directly
fund religious schools.
Even more
disconcerting than the distrust of our constitutional democracy is
the distrust of America
itself. I would hope that no American -- and certainly no judge --
would ever believe that the citizens of foreign countries are always
right and that America is always wrong. Yet I worry that some judges
become more and more interested in impressing their peers in foreign
judiciaries and foreign governments and less interested in simply
following the U.S. Constitution and American laws. At least one U.S.
Supreme Court Justice mentioned publicly -- and Justice Ginsburg's
comments were reported on April 2 in the New York Times. A Justice
has stated that following foreign rulings rather than U.S. rulings
"may create that all important good impression," and therefore,
"over time, we will rely increasingly...on international and foreign
courts in examining domestic issues."
Well, let me
conclude by saying I find this attitude and these expressions of
support for foreign laws and treaties that we have not ratified
disturbing, particularly when they are used to interpret what the
U.S. Constitution means. The brave men and women of our Armed Forces
are putting their lives on the line in order to champion freedom and
democracy, not just for the American people but for people all
around the world. America today is the world's leading champion of
freedom and democracy. I raise this issue, and I have filed a
resolution for the consideration of my colleagues on this issue. I
speak about it today at some length because I believe this is an
important matter for the American people to know about and to have a
chance to speak out on.
I believe the
American people -- certainly the people in Texas -- do not want
their courts to make political decisions. They want their courts to
follow and apply the law as written. I believe the American people
do not want their courts to follow the precedents of foreign courts.
They want their courts to follow U.S. laws and U.S. precedents. The
American people do not want their laws controlled by foreign
governments. They want their laws controlled by the American
Government, which serves the American people. The American people do
not want to see American law and American policy outsourced to
foreign governments and foreign courts.
So I have
introduced a resolution to give this body the opportunity to state
for the record that this trend in our courts is wrong and that
American law should never be reversed or rejected simply because a
foreign government or a foreign court may disagree with it. This
resolution is nearly identical to one that has been introduced by my
colleague in the House, Congressman Tom Feeney. I applaud his
leadership and efforts in this area, and I hope both the House and
Senate will come together and follow the footsteps of our Founding
Fathers, to once again defend our rights as Americans to dictate the
policies of our Government -- informed but never dictated by the
preferences of any foreign government or tribunal.
Mr.
President, I yield the floor.
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