Congress Has Every Right to Judge the Judges

Congress wants to know what judges are doing. Does this trample on the judges’ prerogatives?

Specifically, it seeks information on how federal judges are applying sentencing guidelines, a complex set of rules promulgated by the U.S. Sentencing Commission. In exceptional cases, judges may depart from the guidelines either downward -- a lower sentence -- or upward -- a stiffer one.

Federal public defenders, however, see this new congressional requirement as an attempt to pressure judges not to depart downward. And in L.A. last month, U.S. District Judge Dickran M. Tevrizian agreed with them. He held that Congress’ attempt to learn about judges’ sentencing decisions -- and perhaps to publicize and criticize those decisions -- “is a power grab by one branch of government over another branch.”

There surely is a power grab going on here, but it’s not as this judge asserts. It’s the judge who’s trying to stifle information to protect his colleagues from criticism.

Many judges don’t like the sentencing guidelines, partly because they think the guidelines provide too little room for discretion. But there’s no constitutional right to individualized decision-making in sentencing.

Congress could set up fixed rules, like “five years for an armed robbery.” These would be clear and evenhanded. But they might not be sensitive enough to the particulars of each defendant or crime.

Conversely, Congress could create more flexible rules, like “one to 50 years for an armed robbery, whatever a judge decides.” This would let judges take many factors into account, but it might lead to huge disparities in sentences, as some defendants drew lenient judges while others got harsh ones.

Lawmakers took a middle course and produced the guidelines.

Tevrizian’s decision doesn’t challenge the guidelines or their restrictions on sentencing departures. But it does condemn the provision that requires the Justice Department to report to Congress about cases in which judges depart downward. The report must, among other things, give the facts of the case, name the judge and explain the judge’s reasons for the departure.

And the decision praises judicial independence. “Regardless of the individual approach of a judge,” he writes, “the integrity and the fairness of the legal system will always be diminished when unwarranted interference distracts the individual judge from his or her charge to adjudicate solely based on the rule of law.”

Fair enough. But then the opinion defines “unwarranted interference”: “Despite the seemingly self-evident need for judicial independence, a recent upsurge in attacks upon both the individual judge and the entire judiciary has illustrated that the general public is largely uninformed and often ungrateful of the service provided by the court.”

And here’s the clincher: “The judiciary must provide a defense against attempts to usurp judicial independence through inappropriate controls and the dissemination of information that fosters distrust, misunderstanding and apathy towards the function of the court.”

“Dissemination of information” is generally seen as everyone’s right, including Congress’. But the judge disagrees.

The judge goes on to hold the provision unconstitutional on the ground that, “There is no legitimate purpose served by reporting individual judges[‘] performance to Congress.” It’s a “power grab,” “an unwarranted interference with judicial independence and a clear violation of the separation of powers,” he writes.

Presumably, the requested report would be the sort of information that the judge condemned as fostering “distrust, misunderstanding and apathy.”

But Congress has ample legitimate use for this information. If it finds that some judges depart much more than others, that could be a signal that defendants’ fates still depend too much on which judge they draw. Congress might then decide to revise the guidelines, perhaps by limiting downward departures.

Or, if Congress finds that some highly respected judges are departing often, that could be a signal that the sentencing ranges are too broad and should be narrowed. Congress is supposed to legislate based on knowledge about how the current law is being applied, not based on ignorance.

Congress could also use the report as a basis to publicly criticize judges. But although such criticism may sometimes be unsavory or opportunistic, it too would be perfectly legitimate.

Judges have no constitutional right to be free from criticism, by citizens or legislators. They too are government officials. We and our representatives are entitled to express our views about their performance -- and to have the information needed to form those views.

Might such criticism make some judges feel pressured not to reduce a sentence? Well, that’s why judges are appointed for life, and why they are expected to be courageous. No judge need fear arrest for a wrong decision. In light of more than 200 years of American history, judges need not even fear impeachment for their rulings. They may worry that they won’t be elevated to a higher court -- but Congress and the president are entitled to know judges’ records when deciding whether to elevate them.

Nor is there reason to fret about interference with “the rule of law.” Judges make at least three kinds of rulings. They decide facts -- who did what to whom. They interpret laws or decide their constitutionality. And they use their moral and practical judgment to select a fair sentence in a case, which is what downward -- and upward -- departures are all about.

Such sentencing discretion has little to do with the rule of law. It isn’t impartial fact-finding or application of legal principles to interpret legal language. Rather, it’s the rule of each judge’s conscience. And Congress is entitled to monitor judges’ actions, to learn if the law should be changed to give judges less discretion.

No government official is constitutionally immune from criticism. Congress has every right to learn what other government officials are doing and to express its views about their actions. We should be concerned whenever a government official -- even a respected federal judge -- tries to suppress such criticism.