Handcuffing Judges and Justice; Judicial Blacklist Should Be Blackballed

Article excerpt

Byline: Nat Hentoff, THE WASHINGTON TIMES

In his annual report on the state of the federal judiciary, Chief Justice William Rehnquist on Dec. 31 charged Congress - and by implication, the attorney general - with responsibility for a law that can result in "an unwarranted and ill-considered effort to intimidate individual judges in the performance of their judicial duties."

Attorney General John Ashcroft - not content with weakening the constitutional separation of powers through the minimal judicial supervision provision in his USA Patriot Act and executive orders that undermine civil liberties - has attacked the independence of federal judges in their regular sentencing responsibilities.

Last spring, President Bush signed into law a bill that included the Feeney Amendment, named for Rep. Tom Feeney, Florida Republican. Mr. Feeney, at the Justice Department's request, had introduced legislation making it significantly more difficult for federal judges to use their discretion to give sentences lower than those set by the 20-year-old U.S. Sentencing Commission.

But an independent judiciary, free from such legislative restrictions, is the basic guardian of the Bill of Rights and the rest of the Constitution. It protects against an overreaching executive branch and a Congress so deferential to waves of popular opinion that lawmakers may forget that the rule of law becomes distorted unless there is due process - fairness - in our courts.

The Feeney Amendment orders the Sentencing Commission to keep records of each federal judge whose sentences are downward departures from the commission's guidelines. These reports on judges who are "soft" on sentencing must be given to Mr. Ashcroft, who is then required to inform the judiciary committees of the House and Senate about the "wayward" judges.

In addition, Mr. Ashcroft, taking command, sent an internal memorandum last July 28 to federal prosecutors around the country to report directly to the Justice Department - that is, "the General" - any reductions of sentences under the guidelines.

Reflecting the rising resentment of federal judges around the country is Manhattan Federal District Judge John S. Martin Jr. Nominated by the first President Bush, Mr. Martin, who had been on the federal bench for 13 years, has resigned his lifetime appointment. Explaining why in the New York Times editorial page, he wrote that, "For a judge to be deprived of the ability to consider all the factors that go into formulating a just sentence is completely at odds with the sentencing philosophy that has been a hallmark of the American system of justice. …