Academic journal article
By Sensenbrenner, F. James, Jr.
Judicature , Vol. 87, No. 5
Thank you for the invitation to speak this morning before the Judicial Conference of the United States.
As we all know, the Founders of our Republic drafted a blueprint for self -government that has endured for well over two centuries because it delineated a balanced relationship among the legislative, executive, and judicial branches. The tripartite system engrafted into our Constitution has served as a model charter of government for nations around the world; and the intellectual legacy of our Founders is the proud birthright of every American.
The Founders anticipated, indeed welcomed, a dynamic interplay among the branches of government. For example, in a speech to the House of Representatives in 9 19 79 89 concerning the proper role of the judicial branch, James Madison stated:
I acknowledge, in the ordinary course of government, that the exposition of the laws and Constitution devolves upon the judicial; but I beg to know upon what principle it can be contended that any one department draws from the Constitution greater powers than another, in marking out the limits of the powers of the several departments.
The relationships among the federal branches over the course of our nation's history has been typified by comity and mutual respect. While sometimes rivalrous, relations among the branches have been free of the destructive impulses that have proven ruinous to other nations.
The relative tranquility in these inter -branch relations is at least partly attributable to the clarity with which the Constitution assigns authority to each branch. The Constitution provides Congress a central role in regulating the judiciary. Article I provides Congress the authority to establish the lower federal courts, determine the Supreme Court's appellate jurisdiction, impeach and remove judges, and to enact laws necessary and proper for executing these authorities.
Unfortunately, over the past year or so, Congress, and the House judiciary Committee in particular, has been under sustained criticism for its constitutionally -mandated legislative and oversight actions concerning the federal judiciary. The stridency of these remarks has sometimes taken on a harshness that is not only uncommon, but inconsistent with the historic amity that has governed relations between the branches.
As we all know, Congress passed the PROTECT Act last year, which among other things reformed the federal criminal laws concerning child abduction and child pornography. Among the provisions of the bill were reforms of the federal sentencing guidelines; particularly, reforms correcting abuse by federal judges of downward departure authority. The Feeney Amendment was approved by the House of Representatives on a straight up-or-down vote by an overwhelming bipartisan majority7 -357 to 58. The final bill, which included weakened Feeney provisions, passed the House 400 to 25 and the Senate 98 to 0.
The Feeney Amendment represents a legislative response to long-standing congressional concern that the sentencing guidelines were increasingly being circumvented by some federal judges through inappropriate downward departures, resulting in a return to sentencing disparities.
Much attention has been focused on the judiciary Committee's oversight of the chief judge of the District of Minnesota following misleading testimony before the Committee concerning the application of the federal sentencing guidelines. He identified specific cases as relevant to the Committee's consideration of pending legislation. Thereafter, the Committee sought the public records of these cases and certain others in which the chief judge had departed downward. Among other documents, the Committee obtained a transcript of one of the chief judge's sentencing hearings in which he admitted to having granted "an illegal departure" in the case and dared the United States to appeal his one month variance. Surely reason able persons would conclude that Congress has a responsibility to inquire further in the face of such an admission. …