News Intelligence Analysis
A New York Times Article
January 1, 2004
Chief Justice Attacks a Law as Infringing on Judges
By LINDA GREENHOUSE
WASHINGTON, Dec. 31 Chief Justice William H. Rehnquist criticized Congress in unusually pointed terms on Wednesday for a recent law that places federal judges under special scrutiny for sentences that fall short of those called for by the federal sentencing guidelines.
The legislation, enacted last spring as a little-noticed amendment to the popular Amber Alert child protection measure, "could appear to be an unwarranted and ill-considered effort to intimidate individual judges in the performance of their judicial duties," the chief justice said in his annual year-end report on the federal judiciary.
"It seems that the traditional interchange between the Congress and the judiciary broke down" when the amendment passed without any formal evaluation from the judiciary, he added.
At its most recent meeting, in September, the Judicial Conference of the United States, a group of 27 judges who make policy for the federal courts, voted unanimously to ask Congress to repeal the amendment. Congress has not acted on the request from the conference, which the chief justice heads, and the prospect that it will do so appears slight.
The chairman of the House Judiciary Committee, Representative F. James Sensenbrenner Jr., Republican of Wisconsin, issued a statement on Wednesday defending the legislation and responding to the chief justice's criticism. Mr. Sensenbrenner said it had been necessary for Congress to act because the "growing problem of downward departures" the term for sentences that fall below the minimum produced by the guidelines had been "undermining sentencing fairness throughout the federal system."
Mr. Sensenbrenner said Congress was aware of the judiciary's opposition when it adopted the amendment.
"This disagreement," he said, "resulted from a policy dispute between Congress and the judiciary and did not result from any breakdown in communication between the branches or a lack of opportunity for judges to express their thoughts on this issue."
Nonetheless, it is clear that Congress is not of one mind on the question. Senator Edward M. Kennedy of Massachusetts, a leading Democrat on the Senate Judiciary Committee, called the chief justice's criticism "extraordinary" and said he agreed that the amendment was undermining judicial independence, by creating "blacklists based on the sentencing practices of individual federal judges." Mr. Kennedy said he had introduced a bill to repeal the amendment.
The measure at issue is known as the Feeney Amendment, for its sponsor, Representative Tom Feeney, Republican of Florida. It instructed the United States Sentencing Commission, the agency that sets the guidelines, to issue new rules to "ensure that the incidence of downward departures is substantially reduced." The commission was ordered to maintain judge-by-judge records of sentencing departures and to send the files to the attorney general, who in turn is obliged to provide the information to the Judiciary Committees of both houses.
In one sense, given the Judicial Conference's official opposition to the Feeney Amendment, Chief Justice Rehnquist's critical remarks did little more than reflect existing judicial policy. The Judicial Conference's action itself reflected the views of many federal judges, who have become increasingly resentful of the limits mandatory minimum sentences in some cases, in addition to the guidelines that have been placed on their traditional sentencing discretion.
But the chief justice's choice of subject for his year-end statement this was his 18th is never casual, and by making the sentencing debate the focus of the report, he was clearly trying to raise the issue's public visibility and bring it more forcefully than before to the attention of Washington policy makers. He has long been concerned about guarding judicial independence, and it was in those terms that he framed his critique of the Feeney Amendment.
The chief justice said that "by constitutional design," judges had "an institutional commitment to the independent administration of justice and are able to see the consequences of judicial reform proposals that legislative sponsors may not be in a position to see."
He suggested that while "judges are bound to respect" the Congressional perspective on questions of judicial administration, the respect should run in both directions.
"Consultation with the judiciary," he said, "will improve both the process and the product."
Copyright 2003 The New York Times Company
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