Thursday, Jan. 8, 2004 | 9:11 a.m.
THE ANNUAL YEAR-END REPORT on the federal judiciary is always interesting reading. The report by Chief Justice William H. Rehnquist on the federal court actions during 2003 didn't disappoint me. He makes his points clear and it doesn't take a genius to understand him. Again, as he did in his report for 1998, he has taken on Congress over some of its actions. In an earlier report he pointed to the congressional game of punishing judges by refusing to allow a reasonable increase in pay.
This year he stressed the need for the judiciary to be involved in the making of laws that directly affect the judges and the federal justice system. During 2003 Congress made several changes in the federal sentencing process. They were, without judicial input, slipped into a major crime bill. Rep. Tom Feeney, R-Fla., with the support of Attorney General John Ashcroft, sponsored the provision, which reduced the judges' discretion in sentencing. It also required reports to Congress on any judge who didn't follow these sentencing rules.
Rehnquist wrote, "Among the provisions in the Act that many find troubling is that requiring the collection of downward departure information on an individual judge-by-judge basis. Congress may, of course, change the rules under which judges operate. And there can be no doubt that collecting information about how the Sentencing Guidelines, including downward departures, are applied in practice could aid Congress in making decisions about whether to legislate on these issues. Collecting downward departure information on a judge-by-judge basis, however, seems to me somewhat troubling. For side-by-side with the broad authority of Congress to legislate and gather information in this area is the principle that federal judges are not to be removed from office for their judicial acts. The subject matter of the questions Congress may pose about judges' decisions, and whether they target the judicial decisions of individual federal judges, could appear to be an unwarranted and ill-cons! idered effort to intimidate individual judges in the performance of their judicial duties. In any event, the Justice Department, through the United States Attorneys' Offices, can obtain judge-specific information on an informal basis. And the Department can choose to appeal downward departures that it feels are unwarranted."
Did the chief justice overreact when viewing this action as an effort to intimidate individual judges? No, because it was but a few short years ago that one of the most powerful members of Congress said that, "the judges need to be intimidated." Rep. Tom DeLay, R-Texas, threatened some judges with impeachment when he disagreed with their decisions. DeLay said, "We have a whole big file cabinet full (of names). We are receiving nominations from all across the country of judges that could be prime candidates for impeachment." The congressman added that his fellow Republicans loved his anti-judge ranting and "they think I'm God on this one."
The presidents of our large universities agreed in 1997 that computers would determine which two football teams would play for the national championship. Last week the wisdom of this action was open to challenge when probably the best football team in the nation, USC, was denied, by a computer, the opportunity to play for the title. Computers, unlike human beings, can't measure the desire, strength, determination or any other quality so necessary for a true champion to possess. Likewise, Congress as a body can't produce a law that replaces the judgment of a person who sees a defendant and hears all sides of a case. In addition to this experience, additional sentencing information is provided the judge by experts in the field of justice. A law passed in Congress last year can't replace the judgment and understanding needed to sentence an individual convicte d in our courts today or 10 years from today.
Americans continually talk about democracy and our independent judiciary when helping other nations meet the needs of free people. It's about time we pay attention to what is happening here at home as officials like DeLay, Ashcroft and Feeney eat away at the basis of our independent judiciary and open government."
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