Separation anxiety: Congress, the courts, and the Constitution

Georgetown Law Journal, Jan 2003 by Clinton, Hillary Rodham, Liu, Goodwin

IV.

Let me conclude tonight with a call to action on two fronts. First, what we see happening in the courts today underscores how important it is that we in the Senate diligently exercise our constitutional duty to scrutinize judicial nominees-including nominees to the lower federal courts. Let us not forget that cases like Lopez and Morrison affirmed the decisions of lower-court judges who laid the groundwork for the dramatic shifts in doctrine we see today.72 I applaud the efforts of my colleagues on the Senate Judiciary Committee who have done the hard work of ensuring that our federal judges are fair, disciplined, and faithful to the law. The nominations process is an important form of national dialogue on the relationship between Congress and the courts. And for each nominee, it is crucial that the Senate discharge its duty to "advise" before it "consents."73

Second, and even more important, it is imperative that you-the future lawyers, judges, legislators, and policymakers of our Nation-stay engaged and stay involved in the great constitutional issues of our day. It is easy to become disenchanted, even cynical, with some of the recent developments in American law and politics. But as Eleanor Roosevelt once said, it is always better to light one candle than to curse the darkness. If each and every one of you make the commitment to light one candle, then together you will make America glow with the promise of liberty and equality guaranteed by our fundamental law. Together you will forge a constitutional vision sanctioned by the American people and worthy of our Nation's greatest ideals.

May your future be bright, and may your passion for justice be a flame that never dies.

1. Pub. L. No. 88-352, 78 Stat. 241 (1964) (codified as amended at 42 U.S.C. [sec] 2000 (2000)).

2. Pub. L. No. 88-352, 78 Stat. 241 (1964) (codified as amended at 42 U.S.C. [sec] 2000a (2000)).

3. Pub. L. No. 88-352, 78 Stat. 241 (1964) (codified as amended at 42 U.S.C. [sec] 2000d (2000)).

4. 42 U.S.C. [sec] 2000e-2 (2000).

5. 163 U.S. 537 (1896).

6. The Civil Rights Cases, 109 U.S. 3, 13 (1883).

7. Id. at 22; see also id. at 24-25 ("It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theater, or deal with in other matters of intercourse or business.").

8. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258 (1964).

9. United States v. E.C. Knight Co., 156 U.S. 1, 18 (1895).

10. Hammer v. Dagenhart, 247 U.S. 251, 277 (1918).

11. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 550 (1935).

12. Lochner v. New York, 198 U.S. 45, 62 (1905).

13. Hammer, 247 U.S. at 276.

14. Compare United States v. Darby, 312 U.S. 100, 117, 125-26 (1941) (upholding wage and hour requirements of Fair Labor Standards Act and overruling Hammer), Wickard v. Filburn, 317 U.S. 111, 130 (1942) (upholding quota for wheat production in Agricultural Adjustment Act), NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 49 (1937) (upholding National Labor Relations Act provisions establishing comprehensive system for regulating labor-management relations), and W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 400 (1937) (upholding state minimum wage statute), with Carter v. Carter Coal Co., 298 U.S. 238, 316 (1936) (invalidating local system of establishing minimum prices, setting wage and hour requirements, and enforcing collective bargaining agreements pursuant to Bituminous Coal Conservation Act), A.L.A. Schechter Poultry Corp., 295 U.S. at 550-51 (invalidating "codes of fair competition" established in National Industrial Recovery Act), and Hammer, 247 U.S. at 277 (invalidating child labor laws).