The Federalist Society

Bar Watch Bulletin February 12, 2005

2005 ABA Midyear Meeting, President Grey remarks, Dialogue Between Congress & the Judiciary

February 12, 2005

Today we report on proceedings from Saturday's ABA Meetings.

President Grey offers remarks at the ABA Plenary Session with State Bars

ABA President Robert Grey briefed attendees at the ABA Plenary Session with State Bar Association leaders. Grey devoted a portion of his speech to ABA Activities "On Our Watch." According to Grey, "On our watch we have the ability to keep citizens safe and the government accountable. On our watch we can make a difference about how the legal profession is understood and appreciated. You and I will bring this organization to a point where others will say, 'If you want to know how it's done, look at the ABA.'"

He briefly addressed rising medical insurance rates, stating that although lawyers could not entirely be blamed, they were a part of the problem. Grey maintained, "Caps aren't the answer. Twenty-two states in crisis have caps. We need to step back and have a dialogue to understand the facts."


Time for a Dialogue Between Congress and the Judiciary

A Saturday morning panel featured several judges discussing the judiciary branch's relationship with Congress. In his remarks, U.S. District Court Judge Berle Schiller of the Eastern District of Pennsylvania started out by quoting the Federalist Papers #78: the judiciary has neither force nor will, just judgment. Judge Schiller then discussed occasions where, in his view, Congress has threatened the independence of the judiciary. He cited the recent Feeney Amendment, suggesting it created an "atmosphere of intimidation" by instilling a fear that judges would be blacklisted and would have to defend their decisions in the political arena. (The Feeney Amendment sought to limit downward departures by judges from the standard sentencing guidelines. The amendment instructed the U.S. Sentencing Commission to revise its policies preventing judges from reducing sentences below the guidelines and required federal appellate courts to conduct reviews of all downward departures by district court judges. It also established a system for reporting to Congress how federal judges handled sentencing.)
Concerning the use of international law in judicial decision-making, Judge Schiller accused Congressman Feeney of using the threat of impeachment to prevent the use of international law. Judge Schiller stated: "What's wrong with looking at good ideas? There's no principled reason to ignore them." He then went on to discuss attempts at jurisdiction-stripping, including the House of Representative's effort to deprive judges of the authority to hear contentious cases such as the one challenging the phrase "Under God" in the Pledge of Allegiance.

Judge Schiller observed that Supreme Court Justice Sandra Day O'Connor has said that the tension between the courts and Congress is the highest it has ever been. He suggested that politics is causing this atmosphere. Candidates from the Left and the Right have campaigned, using the courts as a point of attack or to instill public fear. The Left claims that right-wing judges are trying to take away a woman's right to choose, and the Right claims that activist judges are set on getting God out of our lives. Judge Schiller suggested that both political parties know that the judiciary has no natural constituent base, and, thus, it is an easy target.

Senator Orrin Hatch responded. He admitted that there was a heightened sense of tension. He suggested, however, that the judiciary is using judicial review as an excessively powerful check on the legislature. He used the example of provisions of the recently enacted Child Pornography Act, which the Supreme Court invalidated, stating "Sometimes the judiciary goes past its Constitutional limits."

The Senator rejected Judge Schiller's accusations of the threat of potential impeachment. Senator Hatch said that no articles of impeachment were ever introduced. He then went on to say that, criticism of the judiciary could be good. It incentivizes judges to be thoughtful in their decisions.

10th Circuit Court Judge Deanell Tacha detailed four broad themes in her remarks: the importance of public trust in the courts, the need to educate the public about the three branches of the Federal government, instilling the idea that government works better when there is tension between the branches, and the importance of attracting good people to government.

U.S. District Court Judge Ricardo Hinojosa discussed his experiences on the U.S. Sentencing Commission.

University of Richmond School of Law Dean Rodney Smolla, the moderator, then asked the panelists to reflect further on the issue of criticism of the judiciary by the political branches.

Senator Hatch responded by suggesting that most judges work within the Sentencing Guidelines. He then noted that it is the judges on the 9th Circuit who "don't care what the law is. They just care what they want it to be. This hurts how people view the judiciary."

Judge Hinojosa believes that "we are seeing more activism because the public is bringing more suits to the courts. We are seeing more activity in the courts."

One last question from Dean Smolla asked about personal and political attacks on judges launched from opponents, such as what happened with Judge Robert Bork's nomination. Senator Hatch responded, "It was a travesty what happened to Bork. It was a huge mistake by Senators."


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