- The Washington Times - Tuesday, May 16, 2000

In a letter dated May 5, 2000, Chief Judge Norma Holloway Johnson of the U.S. District Court for the District of Columbia boldly snubbed a request from Rep. Dan Burton, Indiana Republican, chairman of the House Committee on Government Reform to testify about facial irregularities in the assignment of cases fraught with potential political liability to the Clinton administration. According to the chief judge, to descend from her aerie to appear before an earthbound congressional committee would stain the judicial independence and royalty that the Constitution aimed to secure by its separation of powers.
That lofty claim seems thoroughly misconceived. It is one thing to salute independence of judicial decision-making necessary for both justice and the appearance of justice. It is quite another to shield judges from congressional questions concerning the reasons for case assignments pertinent to its lawmaking and oversight functions. To equate the two betrays a profound misunderstanding of separation of powers. As James Madison elaborated in Federalist 47, it contemplates a partial agency or control among the three branches, and frowns only on the coronation of one at the expense of another.
Congress, of course, is not empowered to harass a federal judge for the sake of harassment. But that legitimate worry seems universes away from the case assignment issue that prompted Mr. Burton's testimonial request of Chief Judge Johnson.
For long years, Local Rule 403(g) of the Rules of the U.S. District Court for the District of Columbia authorized the chief judge to bypass the customary random assignment of cases in favor of special assignments in protracted or complex criminal cases. The rule sensibly seeks a more mercury-footed judicial docket through the efficient deployment of judicial resources. Its invocation is typically sparing, reserved for trial extravaganzas like the Watergate and Iran-Contra prosecutions. Chief Judge Johnson had specially assigned cases only twice in the six years antedating a cluster of Clinton administration criminal embarrassments.
The chief judge then bypassed random assignments in the politically charged cases of United States vs. Charlie Trie, United States vs. Hsia, United States vs. Hubbell, United States vs. Glicken, and United States vs. Kanchanalak. Special assignments were made to judges uniformly appointed by President William Jefferson Clinton. In the Hubbell income tax evasion case, the district judge had been both a financial and political backer of President Clinton in his 1992 campaign.
None of the cases seemed teeming with legal complexities or promising an extended trial when the special assignments were made, i.e., after the indictments but before pretrial motions and skirmishing between the prosecutor and defense counsel. Indeed, in the Glicken case, defense counsel had represented that his client would plead guilty after the criminal accusation. And in the Hsia case, the chief judge deviated from customary practice to ask the Justice Department to plead for a related assignment.
Furthermore, in a vote of no confidence, a collective decision of the United States District Judges for the District of Columbia last February revoked the special assignment power of the Chief Judge; the revocation was followed by the appointment of a special committee two months later by Acting Chief Judge Stephen Williams of the U.S. Court of Appeals for the District of Columbia Circuit to investigate the facts and allegations regarding the special assignments.
In sum, Mr. Burton's request for Chief Judge Johnson's testimony was no fishing expedition. It emerged from volumes of circumstantial evidence of judicial misconduct or political partiality that might demonstrate a justification for either an impeachment inquiry, a statute banning special assignments or requiring judicial explanations for their employment, or a law broadening the criteria for judicial recusal enumerated in sections 144 and 455 of Title 28 of the United States Code.
The tart May 5 letter to Mr. Burton obtusely suggested that judicial independence would be endangered if Chief Judge Johnson explained the apparent irregularities in her special assignments. The hallmark of judging is the elaboration of reasons for decisions, not arbitrary ukases characteristic of Russian czars. Asking Chief Judge Johnson to provide reasons for her special case assignments is unalarming to judicial independence, akin to a statute mandating written explanations by chief judges for each departure from a random assignment.
Indeed, Chief Judge Johnson herself has already offered general but unamplified justifications for her special assignments in a letter to The Washington Times published last Aug. 4. Her refusal to appear before the House Committee on Government Reform on the same subject thus smacks of a defendant testifying on his own behalf but rejecting cross-examination, which the truth-finding process does not tolerate.
Inquiry into the reasons or motivations of government officials is no novelty. Legislators routinely testify in racial gerrymandering litigation regarding the justifications for suspect district boundary lines. Indeed, evidence that illuminates the purpose of government action is a staple of equal protection lawsuits.
Chief Judge Johnson's own colleagues have tacitly recognized that her unexplicated special case assignments have shaken confidence in the political impartiality of the federal judiciary. Her queenlike rebuff to Congress that pivots on an anemic constitutional concern only compounds the problem.

Bruce Fein is a lawyer and free-lance writer specializing in legal issues.

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