March 21, 1997
Chief Justice William H. Rehnquist
U.S. Supreme Court Bldg.
1 First Street, NE
Washington, D.C. 20543
Dear Mr. Chief Justice:
As practicing lawyers, America's criminal defense bar is gravely concerned about recent actions, and threatened actions, in the United States Congress which undermine the very notion of an independent federal judiciary.
Our concerns are most recently highlighted by legislation which proceeded without hearings and at breakneck speed in both the House of Representatives and the Senate, and was signed into law by the President March 19 as he was about to board a plane for the Helsinki Summit. In the House, the measure went by the innocuous name of the "Victim Allocution Clarification Act of 1997," H.R. 924, introduced March 5th. In the Senate, it bore the equally misleading title of the "Victims' Rights Clarification Act of 1997," S. 447, having been introduced March 14th. This special legislation is nothing less than an attempt by an activist Congress, in the context of the ongoing Oklahoma City Bombing case, to overrule the decision of a highly-respected federal trial judge, Judge Richard Matsch -- a ruling with which certain members of Congress disagreed.
Regardless whether the Congress agrees with Judge Matsch's ruling excluding penalty-phase witnesses from attending the trial, it was a determination made in a pending criminal case. The legislation is a troubling precedent for Congressional micro-meddling with the Judiciary. It could be the first major step toward full-scale amendment of the Constitution itself. Such an amendment, currently pending, would provide a long litany of similar "victims' rights" or government-guaranteed judicial entitlements to an amorphous class of "crime victims." It would force both state and federal courts to provide notice of all criminal proceedings to every such victim, and afford standing to assert litigation rights to plead and be heard by the courts at every stage of criminal proceedings, as a full-fledged criminal trial litigant. In all likelihood, court calendars would be tied up in knots, as what is now essentially a two-party proceeding between prosecution and defense would become multi-party bedlam.
The current assault on an independent judiciary does not stop there. While the special Oklahoma City Trial measure was being considered, the Majority Leadership in the House of Representatives announced its intention to impeach "activist" federal judges (specifically naming at least three) who have simply ruled in ways not to their liking. Apparently, some members of Congress feel that politics as usual now includes not only intimidating judges through special legislation re-opening their rulings in the midst of ongoing proceedings, but also threats of impeachment for politically incorrect rulings.
One jurist targeted as being in Congress' cross-hairs is Judge Harold Baer Jr., of the Southern District of New York. You may recall that last year Judge Baer suppressed evidence in a drug case, after finding that the police stopped the suspects without reasonable suspicion. After widespread election-year denunciations from leaders of both houses of Congress, and even both major party presidential candidates, Judge Baer reconsidered his order and reversed himself under intense political pressure.
Direct intimidation is not the only way some members of Congress are pressuring the federal judiciary. Unconscionable delays in confirming qualified judgeship nominees for blatantly ideological reasons just this week caused Senator Orrin G. Hatch, one of the Senate's staunchest conservatives, to decry "playing politics with judges," adding "I am sick of it." The willingness of some Senators to wage confirmation fights for purely political reasons having nothing to do with a judicial candidate's qualifications for the bench may not be anything new. But it has risen to a new level of contentiousness and disdain for the judiciary that, again, subverts the notion of an independent, co-equal Third Branch.
All of this becomes even more of a concern in light of still other recent proposals in Congress to amend the Constitution, this time to establish term limits for federal judges. The idea would be to require the Senate to hold reconfirmation hearings every ten years. It doesn't take much imagination to foresee the kind of Congressional second-guessing of judicial decisions that this sort of proposal would yield.
The National Association of Criminal Defense Lawyers is a non-partisan organization. We have amongst our membership of 9000, distinguished members from both major parties. And we have worked well with both parties on various criminal justice policy and oversight matters. No matter which party is in power, Congress should not act as some sort of self-appointed, super court of appeals. Nor should it become an interlocutory court for special pleas. Congress should not micro-manage the courts, least of all according to a purely political calculus. This kind of posturing undermines America's cherished independence of the judiciary which, just last year, you so rightly termed "the crown jewel" of our democracy. It also dangerously erodes citizen confidence in the rule of law.
We offer our assistance to the Judicial Conference in its efforts to protect and preserve the independent, non-politicized federal judiciary envisioned by the Founders -- an independence which history has demonstrated time and again to be so essential to freedom and justice for all.
Sincerely,
Judy Clarke
President
cc:
Honorable Newt Gingrich
Speaker
U.S. House of Representatives
Honorable Richard Armey
Majority Leader
U.S. House of Representatives
Honorable Richard Gephardt
Minority Leader
U.S. House of Representatives
Honorable Trent Lott
Majority Leader
U.S. Senate
Honorable Tom Daschle
Minority Leader
U.S. Senate
Honorable Wm. Terrell Hodges,
Chair, Executive Committee
U.S. Judicial Conference
National Association of Criminal Defense Lawyers (NACDL)