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Analysis: Rehnquist's advice for the right

By
MICHAEL KIRKLAND, UPI Legal Affairs Correspondent

WASHINGTON, Jan. 1 (UPI) -- Chief Justice William Rehnquist, in his annual report released by the Supreme Court on New Year's Day, warned that trying to remove "activist judges" because of unpopular decisions would endanger an independent judiciary.

The chief justice also appealed to Congress to better fund the federal judicial system.

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Rehnquist has been absent from the bench since November, fighting thyroid cancer. However, he has been working from home, reading briefs and argument transcripts and writing and participating in decisions.

The "2004 Year-End Report on the Federal Judiciary" released Saturday strongly echoes the 80-year-old Rehnquist's voice, and there is little doubt that he wrote it himself.

The chief justice seemed to be speaking mainly to fellow conservatives when he wrote about the increasing political pressures on the judiciary.

Critics on the right have vehemently protested the decisions of "activist judges," particularly in cases involving social issues such as abortion or gay rights.

While not giving specifics, Rehnquist acknowledged what seems to be the growing volume of that protest.

"Criticism of judges has increased dramatically in recent years," he wrote, "exacerbating in some respects the strained relationships between the Congress and the federal judiciary."

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Rehnquist said the Constitution tries to insulate the judiciary from political pressure, but said harsh criticism of judges and justices has existed throughout the life of the republic.

"To a significant degree these tensions are healthy in maintaining a balance of power in our government," he wrote.

But he added that the protests "have in the eyes of some taken a new turn in recent years. I spoke last year of my concern, and that of many federal judges, about aspects of the PROTECT Act that require the collection of information on an individual, judge-by-judge basis."

The core of the act increases penalties for crimes against children and strengthens systems to find missing children. However, an added provision also requires the collection of data on judges who hand down lighter sentences for any crime.

In its criticism of the Protect Act, the Judicial Conference of the United States complained last fall that such "downward departures" are more often than not the result of plea bargains between prosecutors and defendants, and very few judges act on their own to lessen penalties.

"At the same time," Rehnquist wrote, "there have been suggestions to impeach federal judges who issue decisions regarded by some as out of the mainstream. And there were several bills introduced in the last Congress that would limit the jurisdiction of the federal courts to decide constitutional challenges to certain kinds of government action."

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Federal judges are appointed for life, pending "good behavior," and can only be removed from the bench through congressional impeachment.

Informed criticism is helpful, the chief justice said, but critics should remember historic principles.

"First, Congress's authority to impeach and remove judges should not extend to decisions from the bench," Rehnquist said. That principle was established nearly 200 years ago when Jeffersonian Republicans tried to impeach Chief Justice Samuel Chase for political reasons.

The Jeffersonian Republicans (forerunners of modern Democrats) failed to convict Chase, even though they had a large congressional majority. Rehnquist depicted the Chase impeachment in a 1992 book, "Grand Inquests."

"Chase was by no means a model judge, and his acquittal was not an endorsement of his actions," Rehnquist said. "Rather, the Senate's failure to convict him represented a judgment that impeachment should not be used to remove a judge for conduct in the exercise of his judicial duties. The political precedent ... has governed the use of impeachment to remove federal judges from that day to this: a judge's judicial acts may not serve as a basis for impeachment. Any other rule would destroy judicial independence -- instead of trying to apply the law fairly, regardless of public opinion, judges would be concerned about inflaming any group that might be able to muster the votes in Congress to impeach and convict them."

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The chief justice also pointed to the 25-year-old Judicial Conduct and Disability Act. Under its provisions, anyone can file a complaint against a federal judge for misconduct or failure to discharge his duties, and if the complaint is substantiated, it can "lead to various kinds of discipline short of removal from office."

But Congress made clear, Rehnquist said, that the law did not authorize complaints related "to the merits of a decision or procedural ruling." Appeals courts exist to review those decisions.

If judges cannot be removed from office for judicial decisions, Rehnquist asked, how can the judicial branch be subject to the popular will?

Judges are appointed and confirmed by elected officials who do respond to popular will, he concluded.

"It is not a perfect system -- vacancies do not occur on regular schedules, and judges do not always decide cases the way their appointers might have anticipated," Rehnquist said. "But for over 200 years it has served our democracy well and ensured a commitment to the rule of law."

The chief justice also revisited what he and others have called the budget crisis in the federal judiciary. Rehnquist noted that in nine out of the last 10 years the fiscal year has begun with no appropriations bill for the judiciary.

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The continuing uncertainty and fixed costs rising faster than increased funding have put the big squeeze on the federal judiciary, which in 2004 reduced its personnel by 1,350 positions -- 6 percent of its total.

Rehnquist said the executive committee of the Judicial Conference, led by Chief Judge Carolyn Dineen King of the 5th U.S. Circuit with headquarters in New Orleans, "did a yeoman's job, producing a cost-containment strategy" that included a moratorium on some courthouse construction projects, improved working efficiency and a study on possible changes to reduce costs in public defender services, court security, probation and pre-trial services and bankruptcy case processing.

While the cost-containment strategy will help, it will not eliminate the budget crisis, Rehnquist said. "As the judiciary's workload continues to grow, the current budget constraints are bound to affect the ability of the federal courts efficiently and effectively to dispense justice."

Congress could help immediately by reassessing the rent the judiciary is required to pay the General Services Administration for courthouses around the country, he said. "These rental payments today account for no less than 20 percent of the judiciary's budget."

Rehnquist also called on Congress to create new judgeships, especially in the courts of appeal, to handle the increasing caseload.

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Much of the report is taken up with dry statistics on the Supreme Court caseload, but Rehnquist adds a note of warmth in his conclusion, though he does not reveal what he has been told about his long-term chances of beating his cancer.

"On a personal note," the chief justice said, "I also want to thank all of those who have sent their wishes for a speedy recovery.

"Finally, I offer my best wishes to President (George W.) Bush and Vice President (Dick) Cheney and to the members of the 109th Congress, just as I wish to extend my best wishes to those legislators who have concluded their service. I extend to all my wish for a happy New Year."

Rehnquist has told the White House that he will administer the presidential oath to Bush on Jan. 20, and some employees at the Supreme Court have been confidently predicting that he will return to the bench this month.

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(Please send comments to nationaldesk@upi.com.)

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