October 3, 1977
Page 31975
THE LIMITS OF THE LAW
Mr. MUSKIE. Mr. President, George J. Mitchell, Jr., recently confirmed as U.S. attorney for Maine, reflected last Law Day on the nature and limits of our Federal court system. His remarks pose the difficult question of the extent to which our judiciary ought to be a tool for social action. I found his conclusions extremely nourishing food for thought. His remarks were excerpted in the summer 1977, issue of the Bowdoin Alumnus. To share his view with my colleagues, I ask unanimous consent that the article be printed in the RECORD.
There being no objection, the article was ordered to be printed in the RECORD, as follows:
WHAT ARE THE LIMITS OF THE LAW?
(By George J. Mitchell, Jr.)
Law Day is traditionally a time for lawyers to explain our judicial system to laymen, usually in glowing terms. However, there is a subject involving the law which, in my opinion, deserves more public attention and discussion than it has received to date.
I call it the limits of the law. Put in question form: Are we — the American people — trying to use the courts to solve problems they are not equipped to solve?
Beginning with the first administration of Franklin Roosevelt there developed in this nation a tendency to attempt to solve our social problems through the instrument of government, primarily the federal government. That tendency reached its peak during the administration of Lyndon Johnson. It has since declined in the face of negative public reaction over its failure to achieve all of its stated objectives. The result is that government action — in any form, at any level — is in public disfavor.
This is not entirely fair, in view of the many accomplishments during this period: reducing discrimination based on race, religion and sex; providing some degree of economic security for those most in need of it, particularly the elderly; expanding the right to vote to millions who had previously been denied that right; marshalling our collective resources to combat the modern scourge of pollution.
But what Mark Antony said of Caesar applies equally to government programs: the evil they do lives after them, the good is interred with their bones. Whether justified or not, a negative public reaction has set in, and as one result the effectiveness of government to deal with any new problem is impaired.
I now raise the question of whether we are in that first stage of glowing expansion with our courts and our entire judicial system. If so, do we run the risk of a later reaction which will impair the effectiveness of the courts to deal with those limited problems they were originally intended to deal with?
I have no magic solution to the problem. Rather, my purpose is to stimulate some thought and discussion on a subject that should concern us all. Consider three separate but related trends.
First, federal and state courts have taken over the operation of local jails in Boston, Baltimore, New York City, New Orleans. Jacksonville, Knoxville and Toledo; state prisons in Alabama, Arkansas and Mississippi; state hospitals in Alabama, Louisiana and Mississippi; and a school district in Boston.
Second, the United States Congress is in effect transferring to the federal courts the administration of a number of federal programs by dramatically expanding the jurisdiction of the federal courts and the concept of judicial review of executive action.
Third, the courts are being used increasingly as a means of achieving a form of absolute equality that threatens the traditional and honorable American pursuit of individual excellence based on reward for effort.
The first trend is the most serious and complex. Those who oppose the courts' action — mostly elected officials in the states involved — contend that the takeovers threaten us with a new form of dictatorship: by judges appointed for long terms, for life in the case of federal judges, not responsible to the electorate, making decisions on matters as basic as taxes and public services.
There is something to that argument, but not much. For the reality is that in almost every instance, the courts have intervened only in extreme situations, and then only reluctantly.
Listen to this description which appeared in the New York Times of a local jail in Jacksonville:
"Persons accused of crimes were placed in holding cells for up to two weeks, where they slept on tile floors or benches without bedding of any kind. The cells were strewn with filth, including human feces, urine and vomit. There were no bathroom facilities in two of the cells and those in the other three often malfunctioned. Often there was no toilet paper. Inmates never had a chance to shower, shave or brush their teeth in these cells and sleep was nearly impossible.
"They also found rats, mice and roaches. The jail had no windows and lighting was so poor that they couldn't read. Food was poor, and mostly cold. Medical facilities were inadequate. Muggings, robberies and homosexual rapes were common. There were no recreational or educational facilities, no visitors, mail was censored and few reading materials and little opportunity to consult with their attorneys."
Perhaps the most striking part of that description is the first four words: "Persons accused of crimes." In other words, the persons held in such conditions had not been convicted of anything; they had only been charged with crimes. Given such circumstances, can a court either legally or morally refuse to intervene?
Interestingly enough, very few of these court decisions have been appealed. The reason is that many public officials in such areas privately thank the federal courts while publicly denouncing them. Because neither the sheriff nor the mayor nor the governor nor the legislature wants to ask the taxpayers for money to improve conditions in prisons or in state hospitals. So when the judge says "Do it or you go to jail," they can do it and blame the courts.
There is no simple or immediate answer to this complex problem. Certainly the courts must exercise great restraint in deciding where to intervene. If every situation is considered extreme, then of course nothing is extreme. At the same time it is clear that America's greatest treasure, her constitutional guarantees of individual freedoms, belongs to all Americans, including the poor, the retarded, the handicapped, those charged with crimes, and, to some extent, even those convicted of crimes. It is difficult for elected officials in a time of inflation and seething public resentment over high taxes, but if public institutions are to function at all, they simply must function within the framework of the Constitution.
The second trend is less serious and should be easier to resolve. The problem is that in recent years Congress has provided explicitly for federal court remedies and judicial review in virtually every new federal statute, from the Safe Water Act of 1974 to the Endangered Species Act of 1973 and the Older Americans Services Act of 1973. These and other similar legislative actions create new areas of jurisdiction for federal courts, whose time is increasingly consumed in what is really day-to-day public administration. Nearly 75 percent of all the business now before the United States Court of Appeals for the District of Columbia deals with civil litigation involving the federal government. That is obviously the highest percentage in the county because of that court's location, but the trend is similar throughout the country.
In a way, this trend is a tribute to the legal system, for it assumes that judges will act more capably and objectively than will legislators or executives. In reality, judges are no better equipped than either legislators or executives to resolve the complex and conflicting demands in a large diverse nation.
Just as the judiciary must exercise great restraint in deciding when and where to intervene, so must the Congress sharply reduce its tendency to dump all difficult social problems on the courts. As unwieldy and unsatisfactory as our political process seems at times to be, it is still the most effective method yet devised by humans to deal with the problems that exist in any modern society. It is simply no answer to say "Let the judge do it."
The final area of concern is the increasing tendency to use the courts to achieve an absolute equality among all citizens. I yield to no person in commitment to the goal of equal opportunity for all. But equal opportunity guarantees neither equal results nor equal rewards. Jefferson's magic phrase — "All men are created equal" — is simply not literally true. It is true in the sense in which it was intended — in the spiritual sense in that all men are endowed with certain inalienable rights. But it is not true in the physical or mental sense. We are of different sizes, shapes, intellects and talents. There is no way in which the law, or any other human institution, can make us all the same.
Edward Bennett Williams, the famous trial lawyer, put it well recently when he said: "Those who would divide the wealth equally, impose quotas and ratios in education, in employment, and in the political process, regardless of merit, overlook the crucial fact that all human progress throughout history owes its origin to the talented and the enterprising. We must keep a system that allows us to develop and use the talents and excellence of all, no matter what their origin. But if we practice inverse discrimination in the name of a ratio or quota system, we shall deprive the country of some of the real genius and talent we desperately need.
"The really great people of each generation are those who have a commitment to excellence — a commitment to be at all times, in all places, under all circumstances, the very best that they can be at whatever they do."
John Gardner said it best in this century when he wrote: "An excellent plumber is infinitely more admirable than an incompetent philosopher. The society which scorns excellence in plumbing because plumbing is a humble activity and tolerates shoddiness in philosophy because it is an exalted activity will have neither good plumbing nor good philosophy. Neither its pipes nor its theories will hold water."
My remarks ought not to be construed as favoring the application of the law of the jungle to human affairs. Discrimination on account of race or sex are declining, but they remain facts of American life. There are, and will continue to be, some persons who need and should receive the assistance of society at large. In both of these areas collective action remains necessary. But only to assure equality of opportunity, not to guarantee the equality of results. This can be done. I do not regard compassion and the pursuit of individual excellence as mutually exclusive.
There must be a balance in our system and the balance must continue to include the incentive for each individual to achieve that fulfillment in life which, in Edward Bennett Williams words, "comes not from leisure or tranquility, not from idleness or self indulgence, but rather from striving with all one's physical and spiritual might for a worthwhile objective."