GOP Seeks More Curbs On Courts

washingtonpost.com

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."