Commentary: the Chairman’s mixed message
on May 10, 2005 at 3:43 pm
In the current, sometimes heated debate in Congress over the supposedly wayward federal courts, a lot of ideas for “corrective action” by Congress are floating around. Some members have talked about impeachment. Others have suggested funding cutoffs, or withdrawals of jurisdiction. Now, the public has heard from one of the more powerful members, the chairman of the House Judiciary Committee, Wisconsin’s Rep. James Sensenbrenner, and it is somewhat difficult to make out just what he aims for Congress to do. From the courts’ point of view, it may not be all that reassuring.
On Monday, Sensenbrenner delivered the Zale Lecture in Public Policy at Stanford University. His topic: “The Relationship Between the Legislative and Judicial Branches.” The full text is available here. His most provocative suggestion – the one new idea in the speech, in fact – is the possibility that “Congress needs to create an Office of Inspector General for the Federal Judiciary.” Referring to that kind of office as “a watchdog,” the chairman said that IGs “promote good government, help protect the people’s tax dollars, and report to Congress, which can take corrective legislative action when necessary.” (emphasis added)
Perhaps he was only referring to a money-auditing function – IGs would make sure, he said, “through audits and inspections,” that federal funds are spent for the purposes for which they were appropriated by Congress. But that idea comes against the broader background of a wide-ranging speech, much of which targets actual decisions by the courts – including the Supreme Court. And, in that context, the idea may be more threatening than at first glance. It depends on whether the “abuses” he would have IGs monitor include substantive decisions.
He goes from the IG proposal to a discussion of Congress’ “power of the purse,” and then says, somewhat opaquely: “If the courts are not spending their resources judiciously, the American people through their representatives are entitled to corrective action.” He does not explain what “injudicious” use of funds would be, bit the very imprecision of the word raises questions.
Sensenbrenner does defend judicial independence, saying the Constitution insulates the courts “from caving to outside pressures when discharging their duties.” But then he immediately goes into a criticism of the federal courts’ handling of the Terri Schiavo case, saying he “vociferously” disagreed with that. The chairman then says, though, that Congress should not respond to such judicial disappointments “by attempting to neuter the courts.” But, once again, he has a caveat: “This does not mean that judges should not be punished in some capacity for behavior that does not rise to the level of impeachable conduct.” The courts, he says, like other “public servants,” must be “accountable for their actions to co-equal branches of government as well as the American people.”
His next theme is another critical one: “the issue of courts citing foreign sources of authority in their rulings.” He declares solemnly: “America’s sovereignty and the integrity of our legal process are threatened by a jurisprudence predicated upon laws and judicial decisions alien to our Constitution and foreign to our system of self-government.” And, predictably, he singles out the Supreme Court’s decision in Roper v. Simmons, striking down the juvenile death penalty. He calls it “this most recent and egregious recent example of this trend” of citing foreign sources as authority. “Regardless of your views on this issue, the court’s majority opinion lacks coherent and intellectual honesty.”
And, as it turns out, this is not mere rhetorical criticism. The chairman says that his committee will consider “in the coming months” a resolution that he has cosponsored on the subject. He presumably was referring to H. Res. 97, declaring “the sense of the House of Representatives that judicial interpretations regarding the meaning of the Constitution of the United States should not be based in whole or in part on judgments, laws, or pronouncements of foreign institutions unless such foreign judgments, laws, or pronouncements inform an understanding of the original meaning of the Constitution of the United States.”
Query: would the “Office of Inspector General for the Federal Judiciary” monitor how the courts responded to H. Res. 97, if it were enacted? And was Roper v. Simmons an “injudicious” expenditure of federal funds?
A speech that moves, by turns, from strong criticism of specific decisions, to talk of corrective action, to support for judicial independence, to “punishment,” certainly offers, at a minimum, a mixed message. And, from the chairman of a committee in a position to do something about tougher legislative “oversight” of the courts, it is a volatile mix.
