- The Washington Times - Thursday, August 9, 2007

Do you remember, following the Supreme Court decision striking down parts of the Bipartisan Campaign Reform Act, when Sen Patrick J. Leahy, Vermont Democrat, got so mad at the court that his judiciary committee issued subpoenas to Chief Justice John Roberts to question him on his role as a mere umpire rather than a player? Of course you don’t remember this, because it did not happen.

When the judicial branch takes an action, it only rarely leads to calls for impeachment; more often, the anger is directed toward future presidential elections that can affect the composition of the court. Yet, when the executive branch takes action, it leads to “oversight hearings” — lots of them. By one count, there have been more than 600 such hearings since the Democrats took control of Congress this year.

The controversies generated on Capitol Hill regarding the firing of U.S. attorneys and the authorization of the terrorist-surveillance program are soon likely to head to federal court for an examination of the separation of powers, the scope of executive privilege and criminal contempt proceedings. A reviewing court should be careful about how much leeway it gives Congress in exercising its oversight authority, lest that same oversight authority be turned on the courts.

Just four years ago, Rep. James Sensenbrenner, Wisconsin Republican, was upset at a federal judge in Minnesota for his supposed circumvention of federal sentencing guidelines. He threatened to subpoena the records of U.S. District Judge James Rosenbaum in drug cases. The American Bar Association was apoplectic. Purporting to represent its 410,000 lawyer-members, it wrote to the congressman to express its “grave concern” about the “unprecedented” threat to “the independence of the judiciary and to the separation of powers doctrine.” The ABA feared that this action could threaten the independence of other judges who would fear being “compelled to appear before Congress to explain themselves.”

The National Association of Criminal Defense Lawyers also came to the defense of Judge Rosenbaum, adopting a resolution claiming that “the constitutionally proper method of review of a sentence imposed pursuant to the federal sentencing guidelines is by appeal to a United States court of appeals, and not by Congressional intervention.”

Responding in remarks to the U.S. Judicial Conference, Mr. Sensenbrenner defended his attempt at judicial oversight by observing that the role of Congress is not limited to impeachment: “Article I provides Congress the authority to establish the lower federal courts, determine the Supreme Court’s appellate jurisdiction, impeach and remove judges, and to enact laws necessary and proper for executing these authorities.”

This certainly expands beyond Alexander Hamilton’s suggestion, in Federalist No. 79, that the “precautions” for a judge’s responsibility are contained in the impeachment provisions of the Constitution, and this was “consistent with the necessary independence of the judicial character.” It is an odd development in our federal government that Congress has reserved its subpoena and contempt powers for just one of its co-equal branches of government. As any court considers the separation of power that the Constitution institutes among the three branches, it should be mindful that the oversight that Congress so freely uses to grill senior administration officials can easily be transferred to judicial members.

Congressional oversight of the executive branch is an implied, rather than enumerated, power. It is Congress‘ authority to appropriate funds and enact laws that form the basis for oversight. This is because, the argument goes, Congress cannot exercise its powers without knowing how they are being implemented and whether the executive branch is complying with the laws.

These same arguments were put forth by Mr. Sensenbrenner when he called for congressional oversight of the judicial branch regarding the federal sentencing guidelines that Congress had enacted and expected the judiciary to implement.

Congress passes many laws that affect the operation of the judiciary. The federal sentencing guidelines, the circumvention of which so upset Mr. Sensenbrenner, are just one example. The Detainee Treatment Act and the Military Commissions Act were intended to strip federal courts of jurisdiction over habeas corpus petitions filed by Guantanamo Bay detainees, in response to unfavorable decisions issued by those courts, and should courts continue to find ways to review claims brought by detainees, Congress has the option of further revisions to the habeas statutes.

Congress also has the power, however, to haul federal judges before its committees to determine how and why those judges are disregarding Congressional intent in enacting those laws. If the courts have already eroded the separation-of-powers doctrine for investigation of executive branch officials, the targeted federal judges may have little choice but to comply with the resulting subpoenas, or face contempt charges in their own courts.

Darin R. Bartram is a partner in the Washington office of BakerHostetler.