[Congressional Record Volume 150, Number 37 (Tuesday, March 23, 2004)]
[Extensions of Remarks]
[Pages E425-E426]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  SENSENBRENNER REMARKS BEFORE THE U.S. JUDICIAL CONFERENCE REGARDING 
        CONGRESSIONAL OVERSIGHT RESPONSIBILITY OF THE JUDICIARY

                                 ______
                                 

                            HON. TOM FEENEY

                               of florida

                    in the house of representatives

                        Tuesday, March 23, 2004

  Mr. FEENEY. Mr. Speaker, this Member commends this remarkable speech 
because of its brevity and clarity and the extraordinary manner in 
which the speaker explains the appropriate and honorable role of 
federal judges.
  House Judiciary Committee Chairman F. James Sensenbrenner, Jr. (R-
Wis.) spoke this morning before the Judicial Conference, a body 
composed of federal judges of districts and levels from across the 
country and headed by Supreme Court Chief Justice William Rehnquist. 
Chairman Sensenbrenner delivered the following remarks:

       Thank you for the invitation to speak this morning before 
     the Judicial Conference of the United States.
       As we all know, the Founders of our Republic drafted a 
     blueprint for self-government that has endured for well over 
     two centuries because it delineated a balanced relationship 
     among the legislative, executive, and judicial branches. The 
     tripartite system engrafted into our Constitution has served 
     as a model charter of government for nations around the 
     world; and the intellectual legacy of our Founders is the 
     proud birthright of every American.
       The Founders anticipated, indeed welcomed, a dynamic 
     interplay among the branches of government. For example, in a 
     speech to the House of Representatives in 1789 concerning the 
     proper role of the judicial branch, James Madison stated: ``I 
     acknowledge, in the ordinary course of government, that the 
     exposition of the laws and Constitution devolves upon the 
     judicial; but I beg to know upon what principle it can be 
     contended that any one department draws from the Constitution 
     greater powers than another, in marking out the limits of the 
     powers of the several departments.'' The relationships among 
     the federal branches over the course of our nation's history 
     has been typified by comity and mutual respect. While 
     sometimes rivalrous, relations among the branches have been 
     free of the destructive impulses that have proven ruinous to 
     other nations.
       The relative tranquility in these inter-branch relations is 
     at least partly attributable to the clarity with which the 
     Constitution assigns authority to each branch.

[[Page E426]]

     The Constitution provides Congress a central role in 
     regulating the Judiciary. Article I provides Congress the 
     authority to establish the lower federal courts, determine 
     the Supreme Court's appellate jurisdiction, impeach and 
     remove judges, and to enact laws necessary and proper for 
     executing these authorities.
       Unfortunately, over the past year or so, Congress, and the 
     House Judiciary Committee in particular, has been under 
     sustained criticism for its constitutionally-mandated 
     legislative and oversight actions concerning the federal 
     judiciary. The stridency of these remarks has sometimes taken 
     on a harshness that is not only uncommon, but inconsistent 
     with the historic amity that has governed relations between 
     the branches.
       As we all know, Congress passed the PROTECT Act last year, 
     which among other things reformed the federal criminal laws 
     concerning child abduction and child pornography. Among the 
     provisions of the bill were reforms of the federal sentencing 
     guidelines; particularly, reforms correcting abuse by federal 
     judges of downward departure authority. The Feeney Amendment 
     was approved by the House of Representatives on a straight 
     up-or-down vote by an overwhelming bipartisan majority--357 
     to 58. The final bill, which included weakened Feeney 
     provisions, passed the House 400 to 25 and the Senate 98 to 
     0.
       The Feeney Amendment represents a legislative response to 
     long-standing Congressional concern that the Sentencing 
     Guidelines were increasingly being circumvented by some 
     federal judges through inappropriate downward departures, 
     resulting in a return to sentencing disparities.
       Much attention has been focused on the Judiciary 
     Committee's oversight of the Chief Judge of the District of 
     Minnesota following misleading testimony before the Committee 
     concerning the application of the federal sentencing 
     guidelines. He identified specific cases as relevant to the 
     Committee's consideration of pending legislation. Thereafter, 
     the Committee sought the public records of these cases and 
     certain others in which the Chief Judge had departed 
     downward. Among other documents, the Committee obtained a 
     transcript of one of the Chief Judge's sentencing hearings in 
     which he admitted to having granted ``an illegal departure'' 
     in the case and dared the United States to appeal his one 
     month variance. Surely reasonable persons would conclude that 
     Congress has a responsibility to inquire further in the face 
     of such an admission.
       In a letter to me dated November 7, 2003 this body (the 
     Judicial Conference of the United States) objected to ``the 
     dissemination of judge-specific data on sentencing in 
     criminal cases,'' and suggested that ``Congress should meet 
     its responsibility to oversee the functioning of the criminal 
     justice system through use of this data without subjecting 
     individual judges to the risk of unfair criticism in isolated 
     cases.'' I have been perplexed as to why such furor has been 
     raised over obtaining records from a judge's publicly decided 
     cases.
       Assuredly, federal judges in a democracy may be 
     scrutinized, and may even be ``unfairly criticized.'' Subject 
     to removal from office upon conviction of 
     impeachment, Article III judges have been given lifetime 
     tenure precisely to be better able to withstand such 
     criticism, not to be immune from it.
       That the Congress, the elected representatives of the 
     people, may obtain and review the public records of the 
     Judicial branch is both Constitutionally authorized and 
     otherwise appropriate. Over 200 years of precedents show that 
     the Judiciary as a collective body, or an individual judge, 
     is subject to Congressional inquiry. For example, every year 
     Congress scrutinizes budget requests and appropriates money. 
     On a more targeted basis, articles of impeachment against 
     federal judges stemming from their conduct on the bench have 
     led to both impeachment by the House and trial and conviction 
     in the Senate and removal from office on several occasions.
       Of course, I think we all can agree that impeachment ought 
     not lie simply because Congress may disagree with a judge's 
     ``judicial philosophy,'' or because Congress considers a 
     judge's ruling ``unwise or out of keeping with the times.'' 
     That is a far cry from the suggestion that Congress lacks 
     authority, or should not exercise it, to conduct appropriate 
     oversight of the judicial branch including individual judges.
       The Committee's oversight of the sentencing record of the 
     Chief Judge of the District of Minnesota is not premised upon 
     disagreement concerning the ``wisdom'' of a particular 
     sentence, but upon its legality.
       I think it is important to note that Congressional 
     oversight has assumed increased importance because of the 
     delegated authority currently possessed by the Judiciary to 
     investigate and impose appropriate discipline upon its 
     members and its decidedly mixed record in this regard. I have 
     previously noted my profound disappointment with the 
     whitewash of the Congressional complaint against the 
     Honorable Richard D. Cudahy of the 7th Circuit Court of 
     Appeals while serving on the Special Division of the D.C. 
     Circuit Court overseeing independent counsels. Judge Cudahy, 
     whether inadvertent or otherwise, leaked confidential sealed 
     grand jury material to an AP reporter on the day that former 
     Vice President Gore was nominated to run for President. Judge 
     Cudahy admitted to his acts only upon threat of exposure by a 
     criminal investigation and polygraph examination, after 
     seeking to preclude any investigation.
       In response to my formal complaint as Chairman of the 
     Committee on the Judiciary, Judge Richard Posner, only eight 
     days after its receipt, simply whitewashed the matter 
     regarding his colleague Judge Cudahy without conducting any 
     investigation. Judge Posner dismissed the matter out of hand 
     by noting that Judge Cudahy had apologized and Judge Posner 
     concluded that the leak simply did not constitute Rule 6(e) 
     ``matters occurring before the grand jury.'' This conclusion 
     is contrary to the view of the Chief Judge of the Special 
     Division of the D.C. Circuit Court, Judge David B. Sentelle.
       The Judiciary's response in the Cudahy matter stands in 
     contrast to the Congressional Judicial complaint concerning 
     Judge Norma Holloway Johnson. In this case, an independent 
     investigator was hired to review and evaluate allegations, 
     outlined in a congressional complaint, that the Chief Judge 
     of the D.C. judicial district bypassed the random case-
     assignment process in four campaign finance cases that 
     were potentially politically embarrassing. The rules of 
     the court with respect to case-assignments changed as a 
     result.
       The experience with the Cudahy matter and the Chief Judge 
     of the District of Minnesota raises profound questions with 
     respect to whether the Judiciary should continue to enjoy 
     delegated authority to investigate and discipline itself. If 
     the Judiciary will not act, Congress will--consistent with 
     its Constitutional responsibilities. Congress will begin 
     assessing whether the disciplinary authority delegated to the 
     judiciary has been responsibly exercised and ought to 
     continue.
       Before I conclude, I wish to touch briefly on a point that 
     has generated significant scholarly debate and renewed 
     urgency in light of recent Supreme Court decisions: the 
     Court's increased reliance on foreign laws or judicial 
     proceedings in the interpretation of American constitutional 
     and statutory law. Article VI of the Constitution 
     unambiguously states that the Constitution and federal 
     statutes are the supreme law of the land. America's 
     sovereignty may be imperiled by a jurisprudence predicated 
     upon laws and judicial decisions unfound in our Constitution 
     and unincorporated by the Congress. Inappropriate judicial 
     adherence to foreign laws or legal tribunals threatens 
     American sovereignty, unsettles the separation of powers 
     carefully crafted by our Founders, and threatens to undermine 
     the legitimacy of the American judicial process. I anticipate 
     Congressional examination of this issue in the coming months.
       Thanks again for the opportunity to speak before the 
     conference today.

                          ____________________