GOP Seeks More Curbs On Courts
Sensenbrenner Proposes An Inspector General
By Mike Allen
Washington Post Staff Writer
With conservative anger at the judiciary peaking, House Republican leaders
plan to use budgetary, oversight and disciplinary authority to assert
greater control over the federal courts before next year's elections.
The legislative challenge to the courts reflects longtime conservative
suspicion of the courts and displeasure over the courts' refusal to restore
a feeding tube to Terri Schiavo, the brain-damaged Floridian who died March
31. A review was ordered by House Majority Leader Tom DeLay (R-Tex.), who
complained about an "arrogant, out-of-control, unaccountable judiciary."
Although DeLay made the issue a party signature, House Judiciary Committee
Chairman F. James Sensenbrenner Jr. (R-Wis.) has quietly been pursuing a
court-oversight agenda for years, mostly overlooked except for a few
high-profile speeches he has given. Sensenbrenner said in an interview that
his efforts would not be punitive and would be aimed at making the judicial
branch stronger, not at retribution.
"In the early days of the Republic, the precedent was set that judges are
not impeached for unpopular decisions," he said.
Sensenbrenner, 61, who has a degree from the University of Wisconsin Law
School, suggested in a speech at Stanford University this week that
Congress should create an inspector general for the courts to field
complaints and conduct investigations.
Sensenbrenner also vowed to pursue a longtime Republican effort to split up
the U.S. Court of Appeals for the 9th Circuit, which is based in San
Francisco and is considered to be one of the most liberal circuits in the
country. Conservatives were infuriated when the court ruled in 2002 that
the Pledge of Allegiance was unconstitutional because it describes the
United States as "one nation under God."
During the interview, Sensenbrenner said he will be "very active" during
the final year and a half of his chairmanship in seeking to curb the
judiciary -- starting with passage of a tougher disciplinary mechanism for
judges. He said he will not be deterred by criticism that his party is
trying to alter the balance of power among the three branches of
government.
Republican leaders described the effort as a companion to the effort by
President Bush and Senate Republicans to confirm conservatives to lifetime
seats, so that Congress can exercise authority over liberal judges who are
already on the bench.
"There are some judges that have deliberately decided to be in the face of
the president and the Congress, and when they are criticized for that, they
hide behind the issue of judicial independence," he said. He added that
none of the three branches of government "should be given a blank check
without oversight on their operations."
Conservative grievances with the judiciary have been fueled by a series of
decisions in recent decades, from the Roe v. Wade abortion decision of 1973
to rulings about prayer in school and same-sex marriage.
Sensenbrenner's ideas are gaining support in the Senate, where there are
several members who are courting religious conservatives in anticipation of
the presidential primaries of 2008.
Rep. John Conyers Jr. (Mich.), the top Democrat on the Judiciary Committee,
said his party is "going to resist all of these encroachments because they
compromise the whole idea of the separation of powers."
"For us to be trying to get back at the judiciary in this kind of way, I
think, is going to be a very serious weakening of the constitutional basis
for the democracy, and that needs to be resisted," Conyers said.
But Democrats are outnumbered 23 to 17 on the committee.
A variety of legal scholars said the Republican blueprint looks overtly
political. Harvard law professor Alan M. Dershowitz said he does not
necessarily disagree with the proposals, but he noted that the
scandal-scarred Republican leaders "are the wrong people and this is the
wrong political context in which to make changes to improve the judiciary."
"You can't take them seriously, considering their source and timing," he
said.
The Constitution specifies that Congress will set the jurisdiction and
budgets of the courts, and Republican lawmakers began agitating to exercise
that power after Schiavo's death. DeLay drew wide attention to the issue by
declaring that the judges involved in that case would have to "answer for
their behavior." As a guide to his views on the subject, DeLay has been
urging reporters to read "Men in Black: How the Supreme Court Is Destroying
America," by Mark R. Levin.
One of the more controversial parts of Sensenbrenner's plan is exploring
the creation of an office of inspector general for the federal judiciary,
like those that now serve as watchdogs of executive-branch agencies, to
take complaints, prepare reports, and audit and investigate the
administration of the courts.
Republican congressional aides said the inspector general would find ways
money could be saved, and could help lawmakers rebut appropriations
requests from the judiciary. Critics contend that having such an official,
who would likely have an independent office within the court system but
would prepare periodic reports for Congress and answer its inquiries, would
violate the separation-of-powers doctrine.
Sensenbrenner also said that he will insist that the 9th Circuit be split
into three, with a new circuit based in Seattle to cover Alaska, Washington
and Oregon, and another one based in Phoenix to cover four mountain states.
"The Ninth is too big in so many ways," he said Monday night at Stanford,
his undergraduate alma mater. "The question is not if the Ninth will be
split, but when."
