Statements on Introduced Bills and Joint Resolutions

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS -- (Senate - June 28, 2005)

By Mr. CORNYN:

S. 1318. A bill to protect States and Federal judges by clarifying that Federal judicial immunity covers all acts undertaken by judges pursuant to legal authority; to the Committee on the Judiciary.

Mr. CORNYN. Mr. President, I rise today to introduce important legislation to protect State and Federal judges against civil lawsuits, by clarifying that Federal judicial immunity covers all acts undertaken by judges pursuant to legal authority.

To put it mildly, these are not easy days for members of the State and Federal judiciary. I am unaware of any member of this body who has not, at one time or another, criticized a member of the State or Federal judiciary for issuing one ruling or another--including the numerous controversial rulings that have captured the Nation's attention in recent years. Indeed, in each of the two previous Congresses, the Senate unanimously approved strongly worded resolutions ``strongly disapprov[ing]'' the infamous decision of the U.S. Court of Appeals for the Ninth Circuit striking down the voluntary recitation of the Pledge of Allegiance in public schools. See S. Res. 71 (108th Cong.) and S. Res. 292 (107th Cong.).

To be sure, judges are supposed to follow and apply the law--not legislate from the bench. On numerous occasions, I have spoken out against instances of judicial activism. But there are appropriate and inappropriate ways to register one's disapproval and disagreement.

The First Amendment guarantees every American the right to express disagreement with government officials--including State and Federal judges. There is certainly nothing inappropriate about criticizing judicial rulings with which one sharply disagrees. But it is entirely inappropriate to threaten the impeachment and removal of judges simply for issuing rulings with which one disagrees. It is inappropriate to file lawsuits against judges in the hope of pestering or bankrupting them in retaliation for judicial actions one does not like. And it is absolutely deplorable for any person to undertake violence, threats of violence, or other illegal acts against judges.

As a former State trial judge and State supreme court justice of 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 personally know judges and their families who have been victims of violence. I have grieved with those families. And during the Easter recess earlier this year, I met with an old friend, a Federal judge in Texas, to make sure that we are doing everything that we can to protect our judges and courthouse personnel against further acts of violence. So I look forward to legislation that will soon be introduced to strengthen courthouse security and to otherwise bolster protections against violence for judges, their staff, and their families.

Today I would like to introduce legislation to protect State and Federal judges against a different kind of threat--a lesser threat than violence to be sure, but an important one nonetheless: the threat of civil litigation in retaliation for unpopular judicial actions. For centuries, our common law has protected judges against civil litigation by conferring upon them courtroom immunity. It has long been understood that judicial immunity is an essential element of protecting judicial independence and ensuring that judges have the ability and freedom to do their jobs. As the Senate Judiciary Committee noted less than a decade ago: ``Even when cases are routinely dismissed, the very process of defending against those actions is vexatious and subjects judges to undue expense. More importantly, the risk to judges of burdensome litigation creates a chilling effect that threatens judicial independence and may impair the day-to-day decisions of the judiciary in close or controversial cases.'' Federal Courts Improvement Act of 1996--S. 1887, S. Rep. No. 104-366 at 37 (1996).

Throughout its legal existence, judicial immunity has been for the most part a creature of the common law. But there have been times when Congress has seen fit to step in and to strengthen judicial immunity--particularly when the courts have undertaken an unduly narrow view. In 1996, for example, Congress enacted the Federal Courts Improvement Act--important legislation that included a provision reversing a U.S. Supreme Court decision in order to expand the protections of judicial immunity.

It is appropriate for Congress once again to consider legislation to strengthen judicial immunity. This time, I hope Congress will respond to a recent decision by a Federal district court in Fort Worth, TX. That decision applied recent Supreme Court precedents in good faith, but in a manner that leaves judges potentially exposed to vexatious civil litigation. In Alexander v. Tarrant County, the Federal district court held that traditional judicial immunity does not protect State judges acting in their administrative capacities. Specifically, the court held that State judges authorized under State law to supervise local correctional facilities could not claim judicial immunity against suit. As a recent news report and editorial by the San Antonio Express-News make clear, that decision has left judges throughout the State of Texas in a state of uncertainty and anxiety about their exposure to lawsuits and liability. As the editorial rightly argues, the Alexander ruling, and I quote, ``has sent shock waves through the judiciary. ..... Judges have a tough job. They should not be burdened with defending themselves for the administrative duties they perform.'' I ask unanimous consent that a copy of those articles be printed in the RECORD at the close of my remarks.

The legislation I introduce today is simple and straightforward. It protects State and Federal judges against civil lawsuits, by clarifying that Federal judicial immunity covers all acts undertaken by judges pursuant to legal authority. Specifically, it provides that State and Federal judges shall be immune against any Federal civil cause of action respecting the discharge of any legislatively or constitutionally authorized duty, except for actions involving malice. The legislation would not preempt any judicial immunity that already exists under current law.

This legislation was drafted with the support of two Texas State judges--the Honorable Dean Rucker, who presides over the 318th District Court in MidIand, and who chairs the Judicial Section of the State Bar of Texas, and the former chairman, the Honorable Mark Atkinson of the Harris County Criminal Court. I want to thank them both for their service to Texas and for their help with this legislation, and I ask unanimous consent that their letter of support be printed in the RECORD at the close of my remarks. I am also grateful for the technical assistance provided by the Administrative Office of the U.S. Courts, as well as by the office of Texas Attorney General Greg Abbott, which has been intimately involved in the defense State judges against vexatious litigation. Finally, I am especially grateful for the support of the Chief Justice of the Texas Supreme Court, Wallace Jefferson, and I ask unanimous consent that his letter of support likewise be printed in the RECORD at the close of my remarks.

I hope that legislation to protect judges against deplorable acts and threats of violence will soon be introduced and quickly be enacted, and I hope that the legislation I introduce today to protect judges against vexatious litigation will likewise be considered favorably by my colleagues.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

Judges Skittish Without Immunity
(By Zeke MacCormack)

BREAK IN TRANSCRIPT

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