Courting trouble: Congress would rather complain about life-tenured federal judges than make recalcitrant bureaucrats enforce the law.

• Author: Lynch, Michael W.

With their compromised budget deal behind them, Republican congressional leaders turned their attention to a refreshingly soft target: the federal judiciary. In mid-May, the House Judiciary Committee's Subcommittee on Courts and Intellectual Property held a hearing on judicial impeachment. The hearing highlighted several instances of judicial misbehavior, but the impeachment advocates' poster child is clearly Northern California District Judge Thelton Henderson, who blocked the voter-approved California Civil Rights Initiative on flimsy constitutional grounds.

The troubling aspect of the impeachment movement is not the saber rattling. It is what this movement says about the willingness of Congress to lead on critical issues. One gets the feeling Congress is taking on the judiciary because, unlike President Clinton and the members of his administration, life-tenured judges tend not to talk back when they come under temporary political fire.

More important, focusing attention on individual judges deflects attention from the fact that in some very critical areas - labor law, environmental law, and civil rights - federal courts have handed down some sound opinions, only to find them all but ignored. If fully implemented, such Supreme Court decisions as Communications Workers of America v. Beck, Dolan v. City of Tigard, and Adarand v. Pena would restrict the range of federal and local bureaucrats and defund some of the interest groups whose sole purpose is to expand the state. The challenge of implementation lies not in the courts but in the bureaucracies, both federal and local.

On the issue of civil rights, the Clinton administration has done far more to stall the movement to color-blind decision making by government than Judge Henderson, whose restraining order against the CCRI, after all, was overruled by a panel of three appellate judges. (The CCRI is still not in effect though, as it is stayed pending a decision on whether the panel's decision will be reviewed by a majority of the 9th Circuit.) If Congress truly cares about this issue, it has two fronts on which to advance. It could hold oversight hearings to scrutinize the Justice Department's interpretation of recent federal court decisions. It could also pass legislation to clarify the meaning of the 14th Amendment's Equal Protection Clause.

While Henderson is certainly a speed bump on California's highway to color-blind law, in recent years the U.S. Supreme Court has supported the idea that governments should not categorize people by race. In 1989, the Court ruled in Richmond v. Croson that the city of Richmond's 30 percent set-aside for minority contractors was unconstitutional. Finding the program grounded more in power politics than past discrimination, the Court ruled that any government program using race as a decision making factor must pass the judicial test of "strict scrutiny." This means that the government must prove a "compelling interest" in using race based on past discrimination rather than unequal societal outcomes. Any anti-discrimination program must also be "narrowly tailored" to meet its ends, limited in both scope and time. Croson applies these criteria only to state and local...