Separation of Powers and Mutual Respect

Judicature, March/April 2004 | Go to article overview

Separation of Powers and Mutual Respect


During a tense period in interbranch relations, both at the federal level and in some states, legislators and judges should exercise self-restraint, avoiding inflammatory rhetoric and actions that, although they may bring momentary satisfaction or short-term advantage, hold the potential for long-term harm to our systems of separated but interdependent powers.

AJS' mid-year meeting, an edited transcript of which appears in this issue, was devoted to a discussion of separation of powers in federal and state governments. Distinguished panelists representing experience in all branches of government came together with informed academics to discuss current challenges to systems of governance that, although crafted in the late eighteenth and early nineteenth centuries, have served us well in the radically different circumstances of the modern administrative state.

The issues that the panelists and audience participants identified as implicating separation of powers concerns understandably differed in the federal and state sessions. Yet, there were some common issues (e.g., budgetary control and criminal sentencing). Moreover, throughout the program reference was made to the dismal state of interbranch relations at the federal level and in some states, to poisonous rhetoric seemingly deployed more to coerce than to persuade, and to high, if not unprecedented, levels of conflict and partisanship.

Just as there was a sense of a common set of problems, so was there widespread agreement about means to reduce friction and distress. Thus, many participants called for a return to norms of comity that have usually characterized the relations between the legislature and the judiciary. On this view, forbearance in the exercise of naked power and avoidance of actions or words that manifest a lack of the respect that is due a coordinate branch of government are to be preferred to confrontation, saber-rattling, and inflammatory, self-serving rhetoric. All agreed that more frequent and less formal communications between the judiciary and the legislature are key to the reestablishment of a climate in which "normal politics" does not corrupt the healthy competition of interdependence.

In this light, the recent remarks delivered by Representative F. James Sensenbrenner, the chair of the House Judiciary Committee, to the Judicial Conference of the United States, are evidence both of the sorry state of interbranch relations at the federal level and of the urgent need for our leaders to step back, recall our traditions, and keep a civil tongue (see page 202). The occasion, one of the bi-annual meetings of the Conference to which congressional leaders are invited, was designed to promote mutual understanding and respect. It is therefore particularly unfortunate that Rep. Sensenbrenner used the occasion to lecture the assembled judges about a series of current controversies, and to do so in terms that were self-serving, confrontational and, in some particulars, uninformed.

Having himself noted that interbranch relations have historically "been typified by comity and mutual respect," Rep. Sensenbrenner attributed the breakdown "over the last year or so" to criticism of Congress and in particular the House judiciary Committee "for its constitutionally-mandated legislative and oversight actions concerning the federal judiciary." he also lamented the "stridency" and "harshness" of that criticism.

We do not know to what criticism the Congressman was referring. We are quite sure, however, that its tone pales in comparison with language used by the House Majority Leader Tom DeLay or by the so-called "House Working Group on judicial Accountability," in describing the federal judiciary. Rep. Sensenbrenner neglects the fact that both the federal judiciary and those outside the beltway who are concerned about federal judicial independence and accountability are not likely tonor should they-view the activities of the House judiciary Committee in isolation, divorced from the actions of Congress as a whole. …

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