Opening Statement of Ranking Member Chuck Grassley
Senate Committee on the Judiciary
The Role of Judges in our Constitutional System
Wednesday, October 5, 2011
Thank you, Mr. Chairman, for holding today's hearing. I appreciate your efforts to secure the testimony of our distinguished witnesses. I hope that this hearing will be an enlightening experience in which we will discuss the role of judges in our constitutional system. This is a question as old as the Constitution itself and it will always be debated.
I extend a welcome to each of our witnesses. Justice Breyer, let me extend a welcome back to the Senate Judiciary Committee to you. As the chairman stated, you are a former chief counsel of this Committee. I remind you of your statement in your recent book, "Criticism of judges and judicial decisions traces back to our founding. It is a healthy thing in a democracy." I hope you will feel that way as much at the end of the hearing as you did then. We know that you did not have to appear before us, and that your schedule is very busy, so we appreciate that you both have agreed to speak to us.
Justice Scalia, I'm also glad to see you here today. As Judge Posner recently remarked, you have "a real flair for judging." I think that is an understatement. You as much as anyone have strongly advanced the traditional view that a judge's role under the Constitution is to interpret the law according to its text and history.
For my own part, I believe that the role of judges under the Constitution is an important but limited one. Unless the Constitution provides otherwise, the people through their elected representatives govern themselves. In determining the meaning of the Constitution, judges are to apply the intent of the Framers, since that is the extent of the limitation on self-government that the people have agreed to impose on themselves. When judges change the meaning of the Constitution and create new rights, or grant the government powers that it was not intended to have, they reduce the right of the people to govern themselves through the representative government process. Historically, these are the circumstances in which judges and their decisions have been fairly criticized.
It is rare for sitting Supreme Court Justices to appear before the Senate Judiciary Committee. I look forward to your testimony as well as the chance to discuss these important questions with you.-30-
