Chief Justice Addresses Sentencing Issues

"We can all recognize that Congress has a legitimate interest in obtaining information which will assist in the legislative process," said Rehnquist. "But the efforts to obtain information may not threaten judicial independence or the established principle that a judge's judicial acts cannot serve as a basis for his removal from office."

Rehnquist voiced similar concerns when he wrote to Congress in April 2003, expressing the views of the Judicial Conference on the then-pending bill, H.R. 1104, which contained sentencing-related amendments.

"The Judicial Conference," said the Chief Justice, "believes that this legislation, if enacted, would do serious harm to the basic structure of the sentencing guideline system and would seriously impair the ability of courts to impose just and responsible sentences." He asked that there be, before such legislation was enacted, "a thorough and dispassionate inquiry into the consequences of such action." The legislation passed without the requested examination.

The Judicial Conference opposes legislation that would eliminate the courts' authority to depart downward in appropriate situations unless the grounds relied upon are specifically identified by the U.S. Sentencing Commission as permissible for the departure. The Conference also opposes any legislation that would impose specific record-keeping and reporting requirements on federal courts in all criminal cases or that would require the Sentencing Commission to disclose confidential court records to the Judiciary Committees upon request.

The Chief Justice noted in his speech to the FJA that, "Congress has recently indicated rather strongly, by the Feeney Amendment, that it believes there have been too many downward departures from the Sentencing Guidelines. It has taken steps to reduce that number. Such a decision is for Congress, just as the enactment of the Sentencing Guidelines nearly 20 years ago was."

Rehnquist also agreed that the collection of information about sentencing practices employed by federal judges throughout the country, as required by H. R1104, is also "a legitimate sphere of congressional inquiry, in aid of its legislative authority."

He noted, however, that one provision of the newly-enacted law provides for the collection of such information on an individualized judge-by-judge basis.

"This, it seems to me, is more troubling," he said. "For side-by-side with the broad authority of Congress to legislate and gather information in this area is the principle that federal judges may not be removed from office for their judicial acts." This principle, according to the Chief Justice, was established in the trial of Supreme Court Justice Samuel Chase by the Senate nearly 200 years ago. "The political precedent set by Chase's acquittal" said Rehnquist, "has governed that day to this: a judge's judicial acts may not serve as a basis for impeachment."

Rehnquist said that the principle that a judge may not be impeached for judicial acts does not mean that Congress cannot change the rules under which judges operate.

"Congress establishes the rules to be applied in sentencing; that is a legislative function," he said. "Judges apply those rules to individual cases; that is a judicial function. There can be no doubt that collecting information about how the sentencing guidelines, including downward departures, are applied in practice could aid Congress in making decisions about whether to legislate on these issues. There can also be no doubt that the subject matter of the questions, and whether they target the judicial decisions of individual federal judges, could amount to an unwarranted and ill-considered effort to intimidate individual judges in the performance of their judicial duties. We must hope that these inquiries are designed to obtain information in aid of the congressional legislative function, and will not trench upon judicial independence."