Who needs checks and balances? Let's get rid of the judiciary! Yee-ha!

Rehnquist Resumes His Call for Judicial Independence
By LINDA GREENHOUSE

Published: January 1, 2005

WASHINGTON, Dec. 31 - Chief Justice William H. Rehnquist, delivering his 19th and most likely his last year-end report on the federal judiciary, returned on Friday to one of his longtime themes: a need to safeguard the independence of federal judges from intrusive Congressional oversight.

Criticism of judges and their decisions "is as old as our Republic" and can be a healthy part of the balance of power between the branches, the chief justice said in remarks issued by the court's press office. But he added that criticism from Congress had "in the eyes of some taken a new turn in recent years" - an oblique locution that nonetheless left no doubt that he himself was among those discerning a new and disturbing twist to the attacks.

Chief Justice Rehnquist mentioned a measure Congress passed in 2003 requiring special scrutiny of judges who issue sentences shorter than those called for by the federal sentencing guidelines. In his year-end report last year, the chief justice said this approach "could appear to be an unwarranted and ill-considered effort to intimidate individual judges."

This year he took account of more recent developments: "There have been suggestions to impeach federal judges who issue decisions regarded by some as out of the mainstream. And there were several bills introduced in the last Congress that would limit the jurisdiction of the federal courts to decide constitutional challenges to certain kinds of government action."

There have been calls in Congress to strip the federal courts of jurisdiction to hear challenges to the phrase "under God" in the Pledge of Allegiance, to the display of the Ten Commandments on government property and to the Defense of Marriage Act, a federal law that permits states to withhold recognition of same-sex marriages performed in other states.

On another front, a resolution with dozens of sponsors was introduced in the House last spring criticizing the Supreme Court for citing foreign legal authority in several recent decisions. The court has mentioned foreign law in such rulings as those striking down capital punishment for the mentally retarded and invalidating the Texas criminal sodomy statute.

The House measure, the Reaffirmation of American Independence Resolution, declared that "inappropriate judicial reliance on foreign judgments, laws or pronouncements threatens the sovereignty of the United States, the separation of powers and the president's and the Senate's treaty-making authority."

Justice Sandra Day O'Connor, addressing a judicial conference in California six months ago, called the resolution "very worrisome" and said the relationship between Congress and the federal courts was "more tense than at any time in my lifetime."

Representative Tom Feeney, a Florida Republican who was one of the resolution's main sponsors, said when he introduced it that judges who based decisions on foreign precedents would risk the "ultimate remedy" of impeachment.

Chief Justice Rehnquist said in his report on Friday that it had been clear since early in the country's history that "a judge's judicial acts may not serve as a basis for impeachment."

"Any other rule," he added, "would destroy judicial independence," since "judges would be concerned about inflaming any group that might be able to muster the votes in Congress to impeach and convict them."

In 1992, the chief justice published a book, "Grand Inquests," in which he recounted the politically driven effort to remove Justice Samuel Chase from the bench two centuries ago. Though Chase was impeached by the House, the Senate's decision not to convict and remove him "represented a judgment that impeaching should not be used to remove a judge for conduct in the exercise of his judicial duties," Chief Justice Rehnquist said Friday.