An Attack on the Courts

Monday, July 18, 2005

POLITICAL ATTACKS on judicial independence are becoming alarmingly frequent, particularly since the Terri Schiavo case. Discussions of impeaching judges and restricting federal court jurisdiction are now fairly commonplace, and the judicial confirmation process is a constant source of mischief. But even against this troubling backdrop, the letter sent last month to the chief judge of the U.S. Court of Appeals for the 7th Circuit by Rep. F. James Sensenbrenner Jr. (R-Wis.) stands out for its impropriety. Mr. Sensenbrenner, after all, is the chairman of the House Judiciary Committee, and his letter constitutes an active intervention in a routine criminal appeal, an action unbefitting any member of Congress.

Last month, a three-judge panel of the 7th Circuit affirmed the drug conviction and sentence of a woman named Lissett Rivera. Writing for the court, Judge Frank Easterbrook, a highly regarded conservative, noted that Ms. Rivera's sentence at the trial court had been illegal: The crime of which she was convicted calls for a 10-year mandatory minimum sentence, yet the judge gave her just over eight years. But while Ms. Rivera appealed the sentence, arguing that it should be lighter, the government did not. So while the sentence was improper, the court noted that it could not be rectified.

This is hardly a radical notion. But in a letter to Chief Judge Joel M. Flaum, Mr. Sensenbrenner responded as though Judge Easterbrook had somehow defied the law. Citing a series of precedents of dubious relevance, he suggested that the court on its own should have thrown the sentence out. And to make matters worse, he demanded that "all necessary and appropriate measures be taken . . . to ensure . . . a lawful sentence in this case."

As a matter of law, Mr. Sensenbrenner is simply wrong. An age-old legal principle -- reaffirmed in 1999 by a unanimous Supreme Court -- holds that you cannot get relief from an appeals court without appealing. Courts make mistakes all the time, and when parties don't appeal, they're out of luck. Indeed, Mr. Sensen-

brenner's committee is busy writing legislation to make it harder for federal courts to entertain such questions when convicts raise them.

Even were he right on the law, however, the intervention in a pending matter is an intolerable affront to the independence of the courts. The government is represented in criminal cases by the executive branch, not by Congress. For the powerful chairman of a congressional committee to demand a particular result from a court in the name of "oversight" contains at least an implicit threat of retribution. Mr. Sensenbrenner, at the end of his letter, asks for "a prompt response." Judge Flaum acknowledged receipt of the letter but declined to address the merits of the issue, citing the ethical bar to publicly commenting on "pending or impending judicial proceedings." We have, for Mr. Sensenbrenner, a two-word response: Back off.

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