United States Senate Committee on the Judiciary

“ A.General Principles As Chairman Rodino observed during this Committee's impeachment proceedings against President Nixon, "it is not a right but a privilege or a courtesy" for the President to participate through counsel in House impeachment proceedings. [68] An impeachment inquiry is not a trial; rather, it entails a collection and evaluation of facts before a trial occurs in the Senate. In that respect, the House acts analogously to a grand jury or prosecutor, investigating and considering the evidence to determine whether charges are warranted. ”

“ Much of the evidence relied upon by the Committee and gathered by staff was obtained through other investigations, including the investigation by the Senate Select Committee on Presidential Campaign Activities. Indeed, the Senate Select Committee's televised hearings are what typically come to mind when one thinks of Congress's investigation of Watergate. The Senate, of course, does not conduct impeachment inquiries; its constitutional function is "to try all Impeachments" if an officer of the United States is impeached by the House. ”

“ On the one hand, especially because judges and Justices sometimes must decide issues about which reasonable people disagree, there is an argument that the judiciary must not be entirely independent of the elected branches of government. Some aspects of our system—including not only the appointment and confirmation process, but also Congress’s role in setting the Court’s budget, jurisdiction, and size, and its control of the impeachment process—ensure that the judiciary is not entirely independent but is to some degree responsive to elected officials and therefore to public opinion. ”

“ From the perspective of those who urge term limits, these various provisions of the Constitution aim to make the individual members of the judiciary independent at any given point in time, but the composition of the judiciary as a whole responsive over time to the people’s will, as expressed through its electoral decisions about who occupies the presidency and the Senate. ”

“ We cannot pretend that the question before this Senate Judiciary Committee is simply whether Judge David Souter is a competent jurist. We know that the next Supreme Court Justice will become the deciding vote in the Court's decision to either preserve its promise to American women, that they will never again be forced into illegal and, therefore, unsafe abortions, or to renege on that promise. We know that the next Supreme Court Justice will decide the fate of women into the next century. ”

“ The role the Court plays in major political and social conflicts has long made its composition and jurisprudence subjects of debate in the nation’s civic life. Throughout American history, including in recent decades, conflict over the Court has played out with varying degrees of intensity in the processes by which the President nominates and the Senate confirms new Justices. ”

“ If we had the good fortune to write on a blank slate, Senate Rules should require 60 votes to confirm a Supreme Court Justice in order to force, at least in most circumstances, a bipartisan consensus not only on the back end, for the final vote, but also on the front end, by necessitating more consultation by the president with the minority party leadership in the Senate. ”

“ Proponents motivated by these developments contend that the Senate’s actions violated norms governing the confirmation process and that expansion of the Court would serve to counteract these violations and bring the Court’s jurisprudence into better alignment with prevailing values and views of the American public. Other proponents of expansion regard it as critical to prevent the continued undermining of our democratic system of government, which they regard as exacerbated by the Court’s jurisprudence. ”

“ The prosecution is to be conducted before a tribunal whose members are not, like him, responsible to the whole people, but to separate constituent bodies, and who may hear his accusation with great disfavor. The Senate is absolutely without any known standard of decision applicable to such a case. Its judgment can not be anticipated, for it is not governed by any rule. The law does not define what shall be deemed good cause for removal. It is impossible even to conjecture what may or may not be so considered by the Senate. ”

“ Nor can we hold that the Act bars use of committee testimony in United States courts but not in state courts. The Act forbids use of such evidence 'in any criminal proceeding * * * in any court'. Language could be no plainer. Even if there could be legislative history sufficiently strong to make 'any court' mean United States courts only, there is no such history. The few scraps of legislative history pointed out tend to indicate that Congress was well aware that an ordinary person would read the phrase 'in any court' to include state courts. ”

“ They do not 'constitute' such a Court; they do not 'ordain and establish it.' The judges cannot be impeached before the Senate of the United States; they receive no compensation for their services from the United States ”

“ In the sweep of a pen, the Supreme Court promised all American women that there would never again be another Jane Roe, beginning distant courts for the basic human right to decide for herself whether to terminate a pernancy. Never again, the Court promised, may the State presume to intrude on a decision so intimate and significant that it may well determine the remainder of a young woman's life. ”

“ Neither Congress, nor the Executive, are authorized to determine the constitutionality and therefore the validity of their acts, or the limits of their jurisdiction under the Constitution, but the Supreme Court is so authorized, and it is the umpire before which all differences in that regard must be determined. It is the tribunal of last resort, save the people themselves, before whom both Senate and House, and the Executive, must bow, and its decision is final in the interpretation of the Constitution. ”

“ In that seat should sit a judge who has proved a lifetime of dedication to the highest principles a Supreme Court judge is sworn to protect, self-determination, equality and dignity for every member of our society. ”

“ Describing the role of the Supreme Court in the constitutional structure, he wrote:
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. ”

“ He argued that the proposed expansion would “impair [the Court’s] efficiency so long as the Court acts as a unit” but noted that a decision by less than the full Supreme Court may not be seen as legitimate or consistent with Article III. [182] In the 1970s and 1980s, Congress debated reforms that eventually led to the Judiciary Act of 1988, which granted the Supreme Court the discretion to decide whether to review virtually every appeal. ”

“ They have contended that the Senate has no power to inquire into any offence of which one of its members may be accused, that is cognizable in a civil court of criminal jurisdiction. Every man is equally amenable to the general laws of the land, and liable to be prosecuted and punished in the civil courts; but when a man is clothed with a legislative character, he is placed in a new relation; and, besides being amenable to the judicial tribunals of his country, he becomes, to a certain extent, responsible for his conduct to that body to which he belongs ”

“ As noted above, Congress has enacted such legislation with respect to other federal courts. See Resnik Testimony, supra note 4, at 13 (“During the twentieth century, Congress built on constitutional and common law understandings of judicial impartiality and due process to articulate norms for most of the federal judiciary. ... Congress elaborated methods for rulemaking, imposed standards for recusal, mandated term limits on individuals serving as the chief judge of a district and or a circuit court, and instituted a process for complaints to be filed against judges.”) ”

“ Senator Richard Bassett, a member of the committee drafting the bill, ventured to say that “our happiness as a people very much depends on this System.” [11]
A Senate committee comprising ten members (one from each state that had both ratified the Constitution and sent senators by that point) produced a first version of the Act. The committee then sent its draft to leading lawyers, jurists, and officials around the nation, requesting their comments. ”

“ For example, the 1974 resolution authorizing and directing the impeachment inquiry into President Nixon served to clarify the scope of the Committee's subpoena authority and authorized the Committee and its counsel to take depositions. [61] Today, the House Rules for standing committees and for HPSCI already provide these authorities. [62] Thus, as a practical matter, a full vote of the House is no longer needed to provide investigating committees with the kinds of authorities needed to conduct their investigations. Here, of course, the House did ultimately adopt H. Res. ”

“ It is alarming to find so many Members of Congress sworn into the Federal Court at its first sitting in New York. The question then is whether it is proper that Congress should consist of so large a proportion of Members who are sworn attomies in the Federal Courts ; or whether it is prudent to trust men to enact laws who are practising on them in another department. Let common sense answer. If Congress does consist of practising Attorneys, the laws enacted may, in a great measure, depend on the particular causes such individuals may have to manage in the Judiciary ”

“ Measures that would restrict the appellate jurisdiction of the Supreme Court alone, for example, would not straightforwardly transfer interpretive authority from the judiciary to Congress or to any other democratically accountable institution. They would instead reallocate power from the Supreme Court to the lower courts. There seems to be little reason to preclude Supreme Court jurisdiction over specific constitutional questions that remain subject to decision by the lower courts. Precluding Supreme Court review alone would do little or nothing to enhance political democracy. ”

“ These depositions and interviews were conducted consistent with the Rules of the House and with longstanding procedures governing investigations by HPSCI and the other committees. [15] Members of the Minority previously advocated expanding these authorities, explaining that " [t] he ability to interview witnesses in private allows committees to gather information confidentially and in more depth than is possible under the five-minute rule governing committee hearings. This ability is often critical to conducting an effective and thorough investigation." ”

“ It has held, however, that where the same act is an offense against both the State and Federal Governments, its prosecution and punishment by both Governments is not double jeopardy. [46] A contumacious witness is not twice subjected to jeopardy for refusing to testify before a committee of the United States Senate, by being punished for contempt of the Senate and also indicted for a misdemeanor for such refusal. ”

“ The Judges do not, either in fact or in theory, represent the President and Senate. Nor are they appointed to attend to their interests or legislate for them. The power does not flow from the faculty of appointing, but from the relation of constituent and representative. The Judge is elected for the soundness of his judgment, his knowledge of law, and his nice powers of discrimination in deciding controversies between the parties before him. He is the agent of nobody, and represents only the justice of the country, which requires him to be free from any extraneous influence. ”

“ On the other hand, endowing a copyright claimant who has obtained a certificate with a rebuttable presumption of the validity of his copyright does not deprive the defendant in an infringement suit of any rights; it merely orders the burdens of proof. The plaintiff should not ordinarily be forced in the first instance to prove all of the multitude of facts that underlie the validity of his copyright unless the defendant, by effectively challenging them, shifts the burden to him to do so. ”

“ It is impossible that under such circumstances men of talents and integrity will take seats on the bench, when their character shall be liable to be scrutinized without any facts being previously adduced.
I think it absolutely necessary that this resolution should not pass. For if it passes, it will establish a precedent that any member may procure an investigating committee to inquire into the conduct of any executive or judicial officer merely upon his opinion, unsupported by facts, that such an inquiry is necessary. Suppose parties to be nearly equally divided ”

“ Some of the confusion in debates about Court reform may result from a blurring of these two different meanings of judicial independence—the unquestionable value of judges acting free from fear or favor and according to law, and the more complex issues raised by the relationship between the judiciary and the other institutions of our government. The question of how independent of the other branches the judiciary should be is not easy to answer. ”