Congressional Scrutiny of Federal Judges

It looks like severely reduced discretion in sentencing was not the last effort by congressional Republicans to apply pressure to the federal judiciary, and their latest efforts regarding judicial discipline might be having an effect:

Chief Justice William Rehnquist was offering an olive branch to Congress last week when he created a committee to evaluate the federal judiciary's discipline system. But it may have come too late.

Rehnquist was responding to startlingly blunt criticism of the judiciary in recent months, especially from House Republicans who seem intent on taking the judicial branch down a notch or two and giving it the kind of congressional scrutiny it usually does not get.

The key speech signalling this intent was given by House Judiciary Committee Chairman James Sensenbrenner:

Instead of the usual blandishments offered by outsiders who address the conference, Sensenbrenner went down a list of recent judicial ethics missteps. One of the judges involved was in the audience. Sensenbrenner said the judiciary's handling of ethics complaints raised "profound questions with respect to whether the judiciary should continue to enjoy delegated authority to investigate and discipline itself."

Sensenbrenner also defended the right of Congress to oversee the judiciary. "Federal judges in a democracy may be scrutinized and may even be unfairly criticized," Sensenbrenner said according to the text of his speech, released afterward.

According to one judge in attendance, Sensenbrenner's speech was greeted with "stunned silence" by the judges. Another said, "We're not used to being dressed down on our own turf like that."

But as dumbfounded as the judges were by Sensenbrenner's speech, Rehnquist apparently took it to heart as a sign of the strains between the judiciary and Congress -- especially the House of Representatives. And in a series of steps since then, culminating in creation of the new discipline study committee, Rehnquist has moved to repair the breach.

It is hard to know what to make of all this. On the one hand, I am pretty skeptical of the motivations of House Republicans in applying any pressure to the judiciary in this way. We certainly did not hear any uproar from them over the Scalia/Cheney duck-hunting trip. On the other hand, this is a government of checks and balances, and there is nothing inherently wrong with Congress using its duly delegated authority to provide some supervision and oversight. The key there is "some," because both the letter and the spirit of Article III make abundantly clear that the judiciary is to be a fully equal and independent branch, and the line between supervision and control is a thin one indeed. Rehnquist may be just the person to craft a compromise that satisfies congressional desires and judicial independence.