More on Ashcroft

The New York Times has an editorial today that is unusually dishonest, even by the Times' standards in that regard. Here are my thoughts:

Blacklisting Judges
The founding fathers, whose brilliant design for the federal government was based on three coequal branches, would be horrified to learn of Attorney General John Ashcroft's latest idea for improving the American justice system.

I have no idea what the Founding Fathers would have thought of the federal Sentencing Guidelines per se, but I can't imagine why they would think it improper for the federal government to have a policy of appealing from erroneous lower court decisions.

Mr. Ashcroft has ordered federal prosecutors to start collecting information on federal judges who give sentences that are lighter than those suggested by federal guidelines.

This phrasing -- "collecting information on federal judges" -- is misleading. Ashcroft's memo did not ask for information about the judges themselves; rather, he asked that federal prosecutors notify DOJ when a decision is issued that doesn't appear to follow the Sentencing Guidelines.

Critics are right when they say this has the potential to create a "blacklist" of judges who could then be subjected to intimidation.

Nonsense. Federal district judges see their decisions appealed all the time.

Congress established the United States Sentencing Commission in the mid-1980's, and charged it with developing guidelines to bring greater uniformity to sentences handed down by federal courts. The guidelines provide a range of sentences a judge can hand down for particular crimes. But they also permit judges discretion to impose a more lenient sentence, known as a "downward departure," if they can justify the decision. Judges frequently depart downward at the urging of the government, to reward defendants who cooperate with prosecutors.

This is all true. But the question is what to do if judges grant downward departures that are not justified by the Guidelines. In such cases, DOJ has every right to take an appeal.

But the administration and its allies in Congress have made no secret of their unhappiness with judges who impose more lenient sentences than guidelines call for.

Well, is the administration supposed to be pleased with judges who decline to follow the law?

Mr. Ashcroft's latest initiative raises these pressures to a new level. Under the new policy, federal prosecutors will be required in many cases to report when a judge departs downward from the sentence recommended by the federal guidelines. The Justice Department has said it intends to use the data to identify how often particular judges depart downward. Obviously, judges are going to be worried about coming in high on the list, and those who do will wonder if they will be subject to intimidation, as Judge Rosenbaum was.

Intimidation? What does that mean? These are judges who have life tenure, after all. They are about as far beyond the reach of "intimidation" as any federal employee could possibly be. Is it that certain judges might be embarrassed if their decisions are appealed and reversed more often? But judges who don't follow the law ought to feel at least a little embarrassment.

At the very least, the Ashcroft plan would subject federal prosecutors to an unusual, and undesirable, degree of top-down management. Right now, individual prosecutors decide when to appeal a judge's sentence. Mr. Ashcroft seems to want that decision to be made after a review from Washington. A prosecutor who feels a given judge is consistently handing down sentences that are too mild can certainly let his or her feelings be known to superiors.

Eric Muller has already explained that the Times is indisputably in error here. Decisions as to appeals are always made by DOJ, and never by individual prosecutors.

But this new, rigorous and rigid reporting system seems to treat prosecutors as lackeys, and judges as some kind of minor civil servants who can be ordered around by the president and his appointees.

So -- appealing an erroneous decision by a lower court judge amounts to treating the judge as a "minor civil servant who can be ordered around"? Why doesn't the Times raise this charge as to every other instance in which parties appeal from erroneous decisions?

By trying to make federal judges yield to political pressure from Washington, the Bush administration is engaging in a radical attack on our constitutional system. Even Chief Justice William Rehnquist, whose conservative credentials are unassailable, has warned that collecting data on judges' sentencing practices "could amount to an unwarranted and ill-considered effort to intimidate individual judges." Mr. Ashcroft should heed these words, and abandon his dangerous war on the judicial branch.

The Times really brought out the hyperbole here -- "radical attack on our constitutional system" and "dangerous war on the judicial branch"! All because Ashcroft wants to make sure that DOJ appeals, just as it always has, from lower court decisions that fail to follow the law.

And if you read the full text of Chief Justice Rehnquist's May 5 speech to the Federal Judges Association, it is clear that his main concern is that there might be attempts to impeach judges and remove them from office merely because of their judicial decisions. Nothing in what he said would apply to Ashcroft's desire to make sure that erroneous decisions are appealed.

Finally, I'd bet that if Ashcroft had written this memo about the need to make sure that judges sentence violent anti-abortion protestors in accordance with the Guidelines, the Times would be cheering him on.


UPDATE: The Curmudgeonly Clerk expresses slight disagreement with what I've said. To wit:

Buck's thesis strikes me as question-begging. Buck maintains that the DOJ is well within its rights to appeal erroneous sentencing decisions, which is certainly true. But as Buck acknowleges, the DOJ has always been in charge of such decisions, and has always enjoyed the right of appeal. Yet it has chosen not to appeal in most cases. So what then does Buck think that this new policy signifies?

I'm not sure that the Ashcroft memo really represents a new policy at all. From what I can tell, it might more accurately be described as a reminder to make sure that the existing policy on appeals is followed in every case.

Buck also makes this rather interesting claim:

Intimidation? What does that mean? These are judges who have life tenure, after all. They are about as far beyond the reach of "intimidation" as any federal employee could possibly be. . . .

One wonders if Buck recalls Judge Baer's difficulties. See here, here, and here. It seems to me that federal judges, while quite insulated, are hardly immune from unwarranted meddling by the legislative and executive branches.

I do recall Judge Baer. But what does his example prove? That there has been one solitary case in the past decade in which a federal judge went off the deep end, but then corrected himself after furious criticism and threats of impeachment from Congress and the President who appointed him. But why is Baer's situation even relevant? No one here is calling for the impeachment of any federal judges, and no one is even talking about any specific federal judges by name. The only question on the table is how regularly the Department of Justice takes appeals from erroneous decisions in general.