Chief Justice Rehnquist Remains Conservative
And Challenges Radical Republican Legislation

By William Finucane

United States Supreme Court Chief Justice William H. Rehnquist, a renowned conservative, is now involved in a head to head clash pitting the judicial branch against the other two branches of American government. Justice Rehnquist is spearheading the defense of the judicial branch against an attempt by both the legislative and the executive branches to curtail the power and discretion of judges.

Rehnquist’s position is absolutely right.

And in this battle, Judge Rehnquist is fighting a White House and Congress that declares itself conservative. The irony is not lost on the chief justice. He is livid.

Congress has enacted and the Bush Administration has endorsed a law that could be used to round up suspect judges and bring them up on charges before the Congress itself. The goal of the new law, which will be carried forward for enforcement by Atty. General John D. Ashcroft, seeks to assure that judges have little or no discretion when sentencing convicts; in other words, judges who provide sentences proportionately less than the maximum provided by law, and by extension prosecutors who strike similar deals in plea bargaining, will be reported, either to the U.S. Attorney General, or to Congress, or both, and this can result in penalties and/or censure.

There’s no doubt about this, it’s shades of the fascist policies that preceded Nazism’s assumption of total control over Germany’s political structures.

And the current ‘conservative’ Congress took this action without asking the Judiciary for any opinion or comment. "It seems that the traditional interchange between Congress and the judiciary broke down," Rhenquist said on Wednesday, the last day of 2003, as reported by Linda Greenhouse, a N.Y. Times writer.*

This remarkable piece of ‘lawmaking’ slipped through Congress as an amendment to the new Amber Alert legislation, and some Congressmen apparently easily overlooked it as votes were tallied on the popular bill aimed at protecting children.

Florida Republican Congressman Tom Feeney got this sentencing law passed, but it wasn’t without a certain amount of strong support. "The chairman of the House Judiciary Committee, Rep. James Sensenbrenner, R-Wis.," according to Greenhouse, defended the legislation and responded to Rehnquist’s criticism by declaring it had been necessary for Congress to act because of a "‘growing problem of downward departures,’ the term for sentences that fall below the minimum guidelines, and this is ‘undermining sentencing fairness throughout the federal system.’"

Most Americans have studied the nation’s political structure in grade school and probably remember clearly that the government is comprised of three distinct and separate pieces, or branches: Executive, Legislative and Judiciary. These three divisions work as checks and balances against each other. That is exactly how the three branches can keep any one of them from becoming too powerful, and the concept is illustrative of the Founding Fathers’ genius. It is a system that has worked well through various tough times, but it worked because members of the different branches listened to one another and responded to the give and take.

But now majority members of the House and Senate are no longer listening; there is no give and take in the process. This is illustrated by recent legislation that was moved through Congress literally behind locked doors, where the minority party was excluded from any participation. Yet Congressional deafness to the independence of the judicial bench is an even more arrogant and willful departure from the consultative mode. This overall attitude is a dire affliction within Congress, and one that could endanger the historic balance between the three equal branches of American government. Further, the Congressional attitude is compounded by an Executive Branch, a White House, that encourages and supports that approach.

This is no small problem.

If this approach becomes the rule and not the exception, the three branches might well drift into an intergovernmental civil war.

One of the ways the three branches help keep order in the society is that there is some wiggle room in the structure. A police officer (executive branch) can charge a defendant on a murder charge and be happy to see a conviction for second-degree murder, while the judge (judicial branch) can fix the final outcome by what seems to the judge to be the right sentence, which may be less than normal or possible because of extenuating circumstances. Now, however, extenuating circumstances are out the window.

Under this new legislation, a judge cannot see a problem and fix it through sentencing. No, no; that would automatically put the judge’s name on a report to Congress.

Now the executive branch seeks to have all the say in sentencing; it is supreme through the actions of this Congress, this legislative branch. The bill, of course, bears the signature of President George W. Bush, who has repeatedly shown his dedication to the development of an unusually powerful, and secretive, executive branch. Not surprisingly, the bill also has strong backing from Attorney General John Ashcroft.

Both Mr. Bush and Mr. Ashcroft are also behind the nation’s guidebook to lost rights: the Patriot Act. That bill remarkably strips away the traditional rights of American citizens if they happen to get in the way of government intelligence gathering.

But Justice Rehnquist’s targeted complaint is the separate law affecting the judiciary, not average citizens. "Troublesome," was his one-word analysis.

Coming from the man representing the highest post in the third branch of American government, anything that is called "troublesome" can be viewed as a potential evil. Reporting judges to Congress, wrote Rehnquist, "could appear to be an unwarranted and ill-considered effort to intimidate individual judges in the performance of their judicial duties."

In something of a left-handed – if not underhanded – manner, this situation appears to be a case of Congress tossing down the glove in front of the Judiciary; the challenge has been made! If Congress can issue dictates about how judges use their sentencing prerogatives, it can ultimately strip away all other Judiciary powers as well.

For judge’s nation-wide, this is the biggest fight they have faced in decades. But they recognize the threat and are responding. Back in September, the Judicial Conference of the United States voted to challenge the new law and its concept of reporting judges to Congress for using sentencing discretion. The Judicial Conference is a 27-judge group that sets overall policy guidelines for federal judges. So the judges are at least fighting.

And the judges are getting help from some in Congress. A bill is being introduced that would wipe away the new judicial reporting amendment. That bill is sponsored by Massachusetts Democratic Senator Edward M. Kennedy and Vermont Democratic Senator Patrick Leahy, along with others. They are on the right side of this issue, and ironically are taking the conservative position.

Right now, the Executive and Legislative Branches are controlled by the Republicans, the majority of whom claim to adhere to ‘conservative values.’ They are war-prone and seem to be gaining voter support for being that way. Clearly this is dangerous. But what is even more striking is the fact that the actions being taken do not appear to be conservative; on the contrary, they appear radical. The Bush Administration and its Congressional supporters are not traditional Republicans, they are New Republicans.

These New Republicans seem to have captured the GOP and are leading it far away from its standards and traditions; the New Republicans clearly favor massive federal spending, bigger and far more intrusive government, and the consolidation of power, particularly executive authority. These are radicals, not conservatives.

By definition, conservative means a tendency "to favor the preservation of the existing order and to regard proposals for change with distrust."**

As the head of the Judicial branch of government, it appears clear that Chief Justice Rehnquist, in this instance, is remaining true to his long-stated conservative principles. But the other two branches of government are clearly moving in other, more radical directions. If those two branches, the Executive and Legislative, continue on that road and keep stripping away the powers of the judiciary, there may be only one place to turn for a solution: that is, to the people, who provide the roots and the trunk of the American tree, and from which the branches of government derive their ability to exist.

Also, of course, those three equal branches of government have a defacto fourth branch that they have historically had to deal with, and it can out-rule all the others if it puts itself forward to motivate the public. The Fourth Estate, as it has been historically termed, is immensely powerful, but in modern times it has also become less and less diverse in its ownership control and more and more reactive, both politically technically. There are far, far fewer independent newspapers than there were a quarter century ago, and the great majority of the print press is now owned or controlled by men and women who consider themselves aligned with the Republican Party.

It is worth recalling that it is only the print press that is free from prior governmental restraint through its Constitutional protections. The electronic media, radio and television, are licensed and monitored by the government. But it is also worth remembering the old axiom, so well known to reporters and editors, that "freedom of the press belongs to those who own the presses." The problems that emerge from a consolidation of ownership, especially when a majority of owners have ties to one particular political party, become easily evident as soon as one imagines what might be currently said in the press if the policies and actions of the Bush Administration and Congress were not those of Republicans, but were instead the policies and actions of Democrats.

So it is probable that little press support will be provided to Justice Rehnquist in his struggle to lead the Judiciary through this battle with the current Executive and Legislative branches.

What is left is the quiet power of the average American, the public that makes up the roots and trunk of the national tree. If the public exercises its voting strength, it can put the current leaders out of office, or it can put questions on the ballot, and certainly can change how the Legislative, Executive and Judicial Branches operate.

In some ways it might sound rather drastic, but it also seems clear that it is the people, the voters, that will have to act if President Bush and the Congress continue to gang up on the judiciary, especially if the "New Republicans" are successful in deflecting the attempts by Senators Kennedy and Leahy to rescind the judicial reporting law Mr. Feeney and others slid through as part of the Amber Alert legislation. If that should happen, the probability is that there will be no one else left, other than the average American, to protect the independence of the Judiciary, and therefore assure the continuation of the unique check and balance system that has protected and allowed the nation’s democracy to grow and succeed.

If this struggle continues, it will be up to the people to step in and resolve it, and in this election year the voters will have the options at hand.