Conservatives In Congress Seek Power Over Judges

Upset at the power of the courts, congressional conservatives have launched a campaign to rein in federal judges.

The lawmakers and their allies are discussing a wide array of measures, such as imposing term limits on all federal judges, empowering Congress to nullify any judicial decision that a majority of the House and Senate disagree with and even launching impeachment proceedings against judges whose decisions stray from what Congress views as a strict adherence to the law.

“Far too many of our policies - on education, on justice, on morality - are the result of judicial decree,” said House Majority Whip Tom DeLay, R-Texas, who is leading the House effort to clip the courts’ wings.

But critics of the campaign, including some conservative scholars, deride it as an attack on the very Constitution that the lawmakers and their allies say they are defending, including the time-tested concept of judicial independence.

“How could you have an independent judiciary if you give Congress power to second-guess and overturn everything they did?” asked Senate Minority Leader Thomas Daschle, D-S.D. “That’s intimidation of the worst kind.”

So far, conservative critics of the courts have confined their activity mostly to rhetorical attacks rather than mounting a more difficult legislative assault, which would require the two-thirds majorities in each house to amend the Constitution.

But it has had some practical impact. For example, the pace of processing President Clinton’s judicial nominations has slowed to a crawl. Supreme Court Chief Justice William Rehnquist complained that the Senate’s failure to fill an ever-growing number of federal court vacancies is adding to the burden on the judicial system.

Also, while Congress has no control over judges’ tenure, it can restrict the courts’ jurisdiction in both criminal and civil cases. In the 104th Congress, for example, lawmakers slapped tighter limits on the ability of death-row inmates to appeal their sentences by more narrowly defining the procedures for habeas corpus review.

Earlier this month, Rep. Delay urged that impeachment procedings be brought against some federal district judges, not because they were guilty of “high crimes or misdeameanors” - as the Constitution defined impeachable offenses - but because they handed down wrong decisions.

“They tossed out the Constitution to advance their own views,” he said.

Delay and other court critics have turned their sights on several district judges - including Harold Baer Jr. in New York, Thelton Henderson in California, and Fred Biery in Texas - who they say imposed their own arbitrary opinions on cases, ignoring established law and procedures.

Baer suppressed prosecution evidence in a drug arrest, saying police had no reasonable grounds to pursue and stop the suspects. Biery blocked the seating of a pair of Republicans who won local offices, after irregularities were discovered in absentee ballots cast by military personnel. And Henderson stopped the state from putting into effect a referendum measure passed by California voters that would have ended state hiring and college admission preferences for women and minorities.

Some congressional conservatives are leery of DeLay’s prescription, however, including Senate Judiciary Committee Chairman Orrin Hatch, R-Utah. Hatch has promised conservative groups he will be tougher in vetting Clinton’s judicial nominees, but bridles at the idea of impeaching judges whose decisions he disagrees with for political reasons.

“I’m not for term limits and I’m certainly against the idea of removing judges for ideological reasons,” Hatch said. “You have to have some reasonable grounds for impeachment and, for me, that comes down to whether a judge repeatedly and wantonly ignores the law, if his activism goes way beyond the bounds of reasonableness.”