Rubenstein, David, The Nation
In 2002, Republicans on a House Judiciary subcommittee trained their sights on an unlikely target: conservative Judge James Rosenbaum, Chief Judge of the US District Court for the Minnesota District. The attack turns out to have been the opening salvo of a coordinated campaign by conservative Republicans, including Attorney General John Ashcroft and House majority leader Tom DeLay, to promote stricter criminal penalties for federal crimes and to consolidate power in the Justice Department's headquarters at the expense of judges and prosecutors in the field.
Rosenbaum appeared before a subcommittee of the House Judiciary Committee on May 14, 2002. A Reagan appointee with a reputation as a tough sentencer, he nonetheless spoke in favor of a Sentencing Commission proposal to slightly reduce the guideline sentences for low-level drug defendants. Republicans on the subcommittee were pushing legislation that, had it passed, would have overridden the commission. Rosenbaum told the subcommittee that the proposed bill "confuses office boys and assembly-line workers with chairmen of the board."
A week later he received a letter framed as a discovery request and demanding further information on court cases he had cited. Several months later the subcommittee produced a bound report featuring twenty-two pages of allegations against Judge Rosenbaum. The Judiciary Committee is chaired by Wisconsin Republican F. James Sensenbrenner Jr., perhaps best known for his speech making the House case for the impeachment of President Clinton. The subcommittee's chief counsel and the muscle on the Rosenbaum matter is former Ken Starr deputy Jay Apperson.
Committee member Robert Scott, a Virginia Democrat, says he hasn't seen anything like the attack on Rosenbaum in eleven years in Congress. "I don't see how you can interpret it as anything other than an attempt to intimidate anyone who seeks to testify against a bill supported by the majority on the committee," says Scott.
The sentencing guidelines, mandated by legislation passed in 1984, have not been popular with judges. Updated guidelines are published annually in a document the size of a small telephone book. They specify a baseline sentence for a given offense and then in excruciating detail provide a formula for adjusting the sentence up or down based on factors like the defendant's record, "remorse" and degree and nature of involvement. The last step for the judge is to run a finger across a table on the last page, to a column that yields a result, expressed in months. A downward departure is permitted if the judge believes circumstances take the case out of the "heartland" of the offense or, more commonly, if the prosecution requests it in exchange for "substantial assistance," i.e., snitching. (An Ashcroft directive in September, while it required federal prosecutors to back off on plea bargaining, specifically allowed the substantial-cooperation deals to continue.)
In his testimony, Rosenbaum mentioned the prison time that his examples would have been given according to the guidelines, without noting that the actual sentences they received had been reduced by departures--and on that basis he is accused of misleading the subcommittee. …