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Chief Justice William Rehnquist was offering an olive branch to Congress last week when he created a committee to evaluate the federal judiciary’s discipline system. But it may have come too late. Rehnquist was responding to startlingly blunt criticism of the judiciary in recent months, especially from House Republicans who seem intent on taking the judicial branch down a notch or two and giving it the kind of congressional scrutiny it usually does not get. Creation of the new committee was generally praised, and it may have taken some of the edge off the criticism from Capitol Hill. But Rehnquist may be disappointed if he was hoping the carping would cease altogether. In an interview last week, Rep. Tom Feeney (R-Fla.), probably the judiciary’s leading irritant right now, shrugged off news of the new Rehnquist committee and indicated his focus on the judiciary has only just begun. “Judges have wandered,” said Feeney. “When they try to achieve social justice or the ‘right result’ in their rulings instead of what the Constitution and the statutes dictate, then I am going to raise serious questions. I take my oath to uphold the Constitution just as seriously as the judges do.” Feeney’s admonition coupled with similarly strong language recently from House Judiciary Committee Chairman F. James Sensenbrenner Jr. (R-Wis.) make it clear that Rehnquist’s action was about more than the recent ethics controversy over Justice Antonin Scalia’s January duck-hunting trip with Vice President — and Supreme Court litigant — Dick Cheney. The pivotal event that triggered Rehnquist’s move got far fewer headlines than the duck hunt, and it took place on March 16. That is when Sensenbrenner delivered a searing speech behind closed doors at the Supreme Court to the Judicial Conference, the policy-making body of the judiciary. Instead of the usual blandishments offered by outsiders who address the conference, Sensenbrenner went down a list of recent judicial ethics missteps. One of the judges involved was in the audience. Sensenbrenner said the judiciary’s handling of ethics complaints raised “profound questions with respect to whether the judiciary should continue to enjoy delegated authority to investigate and discipline itself.” Sensenbrenner also defended the right of Congress to oversee the judiciary. “Federal judges in a democracy may be scrutinized and may even be unfairly criticized,” Sensenbrenner said according to the text of his speech, released afterward. According to one judge in attendance, Sensenbrenner’s speech was greeted with “stunned silence” by the judges. Another said, “We’re not used to being dressed down on our own turf like that.” But as dumbfounded as the judges were by Sensenbrenner’s speech, Rehnquist apparently took it to heart as a sign of the strains between the judiciary and Congress — especially the House of Representatives. And in a series of steps since then, culminating in creation of the new discipline study committee, Rehnquist has moved to repair the breach. On May 20, Rehnquist met in private with a newly created Congressional Caucus on the Judicial Branch, and later that day, Justices Stephen Breyer and Scalia appeared before a subcommittee of the House Judiciary Committee to discuss reviving the Administrative Conference, a government regulatory policy “think tank” that went out of existence in 1995. It was the first time in decades, apparently, that justices had testified before the committee on matters not directly related to the Court itself. Around the same time, Rehnquist also gave Sensenbrenner advance notice that he was creating the committee on judicial discipline, which will hold its first meeting in mid-June. It is not known if the committee’s meetings will be public. “It wasn’t a panicked or rushed move on the chief’s part,” says one judge familiar with Rehnquist’s thinking. “It was a proactive step.” Still, his recent efforts mark a significant shift for Rehnquist who, as recently as January, in effect told the Senate to buzz off on matters of judicial discipline. At the height of the controversy over whether Scalia’s duck-hunting trip should prompt a recusal in Cheney’s case, Rehnquist wrote to two inquiring senators that any suggestion from members of Congress about when a justice should recuse was “ill considered.” Rehnquist’s new strategy of accommodation won support, at least temporarily. Sensenbrenner said in a statement that he was “pleased and encouraged” by the creation of the committee, and especially by Rehnquist’s choice of Breyer as its chairman. Breyer was counsel to the Senate Judiciary Committee when Congress passed the 1980 law that created modern-day judicial disciplinary procedures. As chief judge of the U.S. Court of Appeals for the 1st Circuit, Breyer also supervised the handling of ethics complaints against the circuit’s judges. Rep. Adam Schiff (D-Calif.), who created the new Congressional Caucus on the Judicial Branch with Rep. Judy Biggert (R-Ill.), says Rehnquist’s recent meeting with the caucus went a long way toward “repairing some of the fractures between the two branches. I’ve been disappointed to see how badly the relationship has deteriorated.” Schiff and Biggert met with Rehnquist at the Court earlier in May, and the chief readily agreed to meet the 25-member caucus at its inaugural meeting. At the session, Rehnquist discussed courthouse construction and judicial pay issues and fielded questions about judicial activism and church-state issues, Schiff says. One of the inspirations for creating the new caucus, Schiff says, was Rehnquist’s own lament in his year-end report last December that “the traditional interchange between the Congress and the Judiciary broke down” during passage of the so-called Feeney Amendment last year. It restricted the ability of judges to make downward departures in sentencing and also called for record-keeping on individual judges’ sentencing departures — a provision that judges viewed as a hostile intrusion on their independence. The Judicial Conference objected to the law, but in his March speech to the conference, Sensenbrenner defended it as well as his committee’s inquiry into the sentencing practices of Minnesota federal Judge James Rosenbaum, who was in the audience as Sensenbrenner spoke. Sensenbrenner also criticized the 7th Circuit’s handling of a congressional complaint against Judge Richard Cudahy over his alleged release of grand jury material to a reporter in 2000. Sensenbrenner said Judge Richard Posner had “whitewashed” the investigation into the complaint by dismissing it with only cursory investigation. It was these incidents, specifically linked to the procedures by which judicial ethics complaints are handled, that prompted Rehnquist’s creation of the committee. “There has been some recent criticism from Congress” about the judiciary’s handling of complaints under the 1980 act, Rehnquist said in an article announcing the committee. The committee’s members are Appeals Judges J. Harvie Wilkinson III and Pasco Bowman, District Judges D. Brock Hornby and Sarah Barker, and the chief’s administrative assistant, Sally Rider. “The chief justice has named a very good panel, but it would have been good to see some nonjudges, who could represent other points of view,” says Steven Lubet, a Northwestern University School of Law judicial ethics expert. But even in his statement praising the creation of the committee, Sensenbrenner reiterated his criticism that the complaint process under the 1980 law, amended in 2002, has not worked well, with “some complaints being dismissed out of hand by the judicial branch without investigation.” On the heels of his sentencing initiative, Feeney recently introduced another provocative piece of legislation, H.Res. 568. It would register Congress’ disapproval of the use by federal judges of citations to foreign court rulings in the interpretation of American statutes. In discussing the resolution, Feeney suggested that invoking foreign precedents — increasingly popular from the Supreme Court on down in recent years — could be an impeachable offense. Sensenbrenner, in his Judicial Conference speech, cited Feeney’s resolution favorably. In the interview last week, Feeney insisted, “I hold the judiciary in incredibly high esteem.” He said his role has been to say, “Let’s have a great national civics debate about the role of judges in society.” Feeney continued, “I have been a vocal critic of judge-made law. Government by an aristocracy is not necessarily bad, but it’s not our form of government.” Scrutinizing judges is a valid role for members of Congress, he said, especially since the Constitution provides only for impeachment as a method of punishment. “When your only option is the nuclear option, you’re very limited.” But Feeney said he welcomes more contact and debate with the judiciary. And he even extended a special offer to the Supreme Court. Feeney said the next time a justice writes an opinion criticizing an act of Congress as idiotic, foolish, or dumb — but still upholds it in deference to the power of Congress — “I will go wash his or her car or mow his or her grass.” BROWN ANNIVERSARY Across D.C. and the nation, dozens of celebrations and events marking the 50th anniversary of Brown v. Board of Education took place on or around May 17. But little public attention was paid to the anniversary at the Court itself. The Court sat on May 17, but Chief Justice William Rehnquist took no notice of the historic decision from the bench. He also passed up a chance to discuss it at his other public appearance of the day, greeting the annual meeting of the American Law Institute. He discussed instead the late Justice Robert Jackson. Rehnquist was Jackson’s law clerk in the early stages of the Court’s consideration of Brown in 1952, but no mention was made of Brown in his remarks. One small acknowledgment of Brown took place on the ground floor of the Court. At 12:52 p.m., 50 years to the minute after the opinion was announced, the Court curator placed on exhibit a copy of the opinion. Justice Stephen Breyer attended the main anniversary commemoration in Topeka, Kan., and in a statement said he was there representing “not nine individual justices but the institution itself.” Court sources say that sometime before the anniversary, some justices took a specially arranged private tour of the Smithsonian Institution’s commemorative exhibit on Brown. Rehnquist’s only written recognition of the anniversary so far has come in a terse, two-paragraph foreword to the Supreme Court Historical Society’s just-published commemorative volume titled Black, White, and Brown. In the foreword, Rehnquist calls Brown a “signal decision,” but offers no other assessment of its importance or value. An article by Rehnquist on Brown is expected to appear in the American Bar Association Journal in July. At least one scholar who wrote about the anniversary highlighted and criticized Rehnquist’s connection to the decision. In a Los Angeles Times op-ed column, University of Chicago law professor Cass Sunstein noted that as a law clerk Rehnquist authored a memo arguing in favor of preserving Plessy v. Ferguson, the 1896 decision overturned by Brown. In the memo, Rehnquist suggested that if the Court struck down Plessy to aid minorities, its impact would “fade in time . . . embodying only the sentiments of a transient majority of nine men.” Asked about the memo at his confirmation hearing in 1971 as associate justice and again in 1986 as chief justice, Rehnquist said the memo reflected Jackson’s views, not his own, but Sunstein said that many historians think “Rehnquist’s memory was inaccurate.” DEATH IN THE FAMILY William Brennan III, son of the late justice William Brennan Jr., died of cancer May 17 at the age of 71. The Princeton, N.J., lawyer was a prominent force in the New Jersey Bar, serving as its president in 1984. Brennan III was board chairman and a guiding force behind the creation in 1995 of the Brennan Center for Justice at New York University School of Law. E. Joshua Rosenkranz, the first director of the center, recalls Brennan as a chairman who could set aside his own views for the benefit of the center’s pursuit of issues his father cared about. “He was not on the same page as his father on a lot of legal and policy issues,” says Rosenkranz, now at Heller Ehrman White & McAuliffe. Brennan zealously guarded his father’s legacy, and voiced displeasure in recent years over the fact that the justice’s biographer, Stephen Wermiel, had not completed the project, begun in 1986. “My father had hoped that he would see the biography at least in draft form before he died,” Brennan told The New Yorker in January. “We are frustrated.” Wermiel, an American University Washington College of Law professor, said in a statement, “I was saddened by the death of Bill Brennan III, in part because I know how much he had wanted to see my biography of Justice Brennan completed. He was very dedicated to the memory of his father, and we are all poorer for the loss of his commitment to the law and the legal profession. I remain confident that when I complete the biography of Justice Brennan, it will properly capture the legacy about which Bill Brennan cared so deeply.” Wermiel has no target date for the book’s completion. BLACKMUN BRIEFS: POOL MAINTENANCE The late Justice Harry Blackmun’s papers make it clear that one of William Rehnquist’s jobs as chief justice is pool maintenance — the cert pool, that is. Several memos from Rehnquist are directed at the law clerks for the eight justices who are in the cert pool, a long-standing arrangement whereby clerks divide up incoming certiorari petitions and write memos on the cases. Those memos go to all the justices in the pool. John Paul Stevens is the only justice who does not participate in the pool, which has been criticized for giving clerks too much power over the fate of cases. Rehnquist memos in the Blackmun files chide the clerks for submitting the memos too late and too long, and for leaving copies in the recycling bin — a major security breach. But a 1996 note to pool law clerks is perhaps the most intriguing, suggesting Rehnquist was concerned that clerks might be shading their summaries to reflect biases. Rehnquist reminded the clerks that cases are assigned to them for summarizing “on a random basis” partly “to avoid any temptation on the part of law clerks to select for themselves pool memos in cases with respect to which they might not be as neutral as is desirable.” He also said clerks might have a valid reason not to write about a particular case, such as when he or she clerked for the judge who wrote the ruling under appeal. “But this sort of problem can, except in the rarest of circumstances, be handled by swaps within a chambers.” Rehnquist wrote he had been informed some clerks were swapping cases between chambers as well. “This sort of trade has the potential for undermining the policy of random assignment of cases, and is, to put it mildly, ‘not favored.’ “

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