Mr. Chairman and members of the Subcommittee, I am Wade Henderson, Executive Director of the Leadership Conference on Civil Rights (LCCR). On behalf of the Leadership Conference, I appreciate the opportunity to appear before you today to reaffirm the importance of our federal courts in safeguarding the Constitutional and civil rights of all persons in the United States. Chief Justice William Rehnquist himself has called the principle of judicial independence "one of the crown jewels of our system of government." We urge this Committee to protect this nation's crown jewels, and to resist improper efforts in the name of "judicial misconduct, discipline, or activism" to undermine justice in America.

The Leadership Conference on Civil Rights is the nation's oldest, largest and most diverse coalition of organizations committed to the protection of civil and human rights in the United States. The Leadership Conference was created by A. Philip Randolph, Arnold Aronson, and Roy Wilkins in 1950 as an independent body to promote passage and the implementation of civil rights laws designed to achieve equality under law for African Americans and to improve the quality of life for all Americans. Today the LCCR has over 180 organizations that work together in resolving the civil rights problems of the day. These organizations include groups representing persons of color, women, labor organizations, persons with disabilities, older Americans, gays and lesbians, major religious groups, and civil liberties and human rights interests.

The Leadership Conference holds as a guiding tenet that all citizens of the United States must be treated equally under the law. Our nation's federal courts have played a critical role in carrying out that fundamental principle. From the Supreme Court's historic decision striking down school segregation in Brown v. Board of Education to the individual rulings by courageous appellate and district court judges like Frank Johnson and Elbert Tuttle concerning discrimination in schools, housing, and public facilities, the courts have enforced the mandates of our Constitution and laws, even when their decisions may have been politically unpopular with some in the short run.

Recently, however, we have heard renewed sounds of ideological discontent and troubling words concerning our federal courts. For example, recent press reports have suggested that plans were being considered in the 105th Congress to explore the possible impeachment of several federal district judges. If the inquiry proceeds, these judges will not be charged with "high crimes and misdemeanors;" nor will they be accused of ethical or legal violations. Instead, the purported basis for this action will be nothing more than what amounts to disagreement with a single decision by each of these judges relating to civil and constitutional rights. For example, Judge Thelton E. Henderson of California has been targeted for possible impeachment simply because he issued a temporary restraining order, which has since been overturned though still on appeal, against California's recently approved anti-affirmative action Voter Initiative, Proposition 209.

Judge Henderson and other federal judges have been labeled by some as "judicial activists" because they ruled that particular governmental action, statutes, or referenda were unconstitutional. But this criticism ignores the very nature of our constitutional system. Moreover, federally protected constitutional rights cannot be determined by voter referendum.

The very purpose of our Constitution is to ensure that violations of precious individual rights and harm to racial and other minorities do not take place, even if a majority in a particular state legislature or election thinks they should. The Constitution gives the federal courts an important role to play in that system of checks and balances, and fulfilling that role is not judicial activism. As Alexander Hamilton wrote in the Federalist papers, it is one of the duties of the judiciary to "declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights and privileges would amount to nothing."

Many Americans have short memories when it comes to our nation's recent history. To those of us in the civil rights community, these recent attacks on the federal courts remind us all too chillingly of a deplorable episode in our nation's civil rights history some 40 years ago. When Chief Justice Earl Warren wrote the unanimous Supreme Court decision striking down state-mandated school segregation in Brown, defenders of segregation cried "judicial activism" across the South and across the country. For example, on March 12, 1956, 81 members of this House signed a resolution condemning Brown as a "clear abuse of judicial power," and as part of an alleged "trend in the federal judiciary to legislate, in derogation of the authority of Congress, and to encroach upon the reserved rights of the people." Signs went up around the country demanding that Congress "impeach Earl Warren."

Mr. Chairman, your predecessors wisely resisted those shameful demands, and Brown is widely recognized today as a just and correct decision. But seeking to impeach Judge Henderson and his colleagues for their decisions today is as improper in its own way as it was for those who opposed desegregation 40 years ago.

In that regard, I am also troubled by at least one provision in the legislation H.R. 1252 discussed before this Committee yesterday. Section 5 of that bill appears to limit the authority of any court to enter any order that would require the levying of any taxes, even when necessary to remedy a constitutional violation. In an attempt to resist desegregation after Brown, however, some school districts literally refused to levy taxes to fund their school systems, which required the courts to intervene to uphold the Constitution. The Supreme Court specifically ruled that such an order was necessary and proper in Griffin v. Prince Edward's County School Bd., 377 U.S. 218 (1964). The Court has already made clear that this authority of the courts is limited; and Congress should tread with extreme caution in this area.

I also want to make it clear, Mr. Chairman, that the Leadership Conference is not suggesting that we must all simply accept any ruling from any federal court in the area of civil or constitutional rights, or that such rulings and the judges who issue them cannot be challenged or criticized. Far from it. For example, when a conservative majority on the Supreme Court of the United States issued a series of rulings which misinterpreted and severely damaged civil rights laws passed by this Congress, displaying what some might call "conservative judicial activism," the Leadership Conference helped lead the effort that resulted in Congress' enactment of the Civil Rights Act of 1991, which reversed the effects of many of these improper decisions. That is also part of the systems of checks and balances. Court opinions with which we disagree can be criticized, appealed, and counteracted or overturned by Congressional or Executive branch action where appropriate. Indeed, while the Leadership Conference believes that Judge Henderson's decision on Proposition 209 was correct, that decision has recently been reversed on appeal, and is now being considered by the full Ninth Circuit Court of Appeals.

But whatever we may think or try to do about an individual judge's decision, it is fundamentally wrong to threaten to impeach a judge because we may disagree with that decision. That point was made last year by Chief Justice Rehnquist, and more recently by the leaders of 76 national, state, and local bar associations, who wrote to Speaker Gingrich. They wrote: The gen ius of the American system of government is the careful balance created by the Founders between the three branches of government. Moving to impeach judges for individual decisions -- a kind of legislative referendum on judicial decision-making -- threatens to destroy this delicately crafted balance.

For the sake of justice and equality as guaranteed for all by our Constitution and laws, we agree. The Leadership Conference is proud to support the principle of judicial independence.

Finally, let me add one more point. We recognize that under the Constitution, it is the responsibility of the President and the Senate, not the House of Representatives, to nominate and confirm federal judges. But it is a problem for all of us when there are 100 vacancies on our federal courts, delaying justice for Americans across the country. We urge members of this Committee to join with the Leadership Conference in urging the Senate and the President to take action to nominate and confirm qualified men and women to fill these vacancies promptly so that justice will not be improperly delayed in our federal courts.

Thank you very much.

*A number of organizations in the Leadership Conference have not taken a position at this time and do not join in this statement.

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