Washington, DC (March 30, 1997) -- Recent actions by Congress, and threats by Congressional leaders, to limit the Constitutional powers of federal judges "undermine America's cherished independence of the judiciary," Judy Clarke, President of the National Association of Criminal Defense Lawyers said in a letter to Chief Justice William Rehnquist, in his capacity as head of the U.S. Judicial Conference, which oversees the federal courts. (Click Here For Letter)

Clarke raised five concerns in the letter, released today, which together point to a pattern of an activist Congress attempting to intimidate the judicial branch, and dangerously threatening the separation of powers doctrine: (1) Congressional meddling in the Oklahoma City bombing cases; (2) proposals to amend the Constitution to give crime victims virtual control of criminal proceedings to the detriment of due process for the accused; (3) impeachment threats against targeted judges, not for "crimes and misdemeanors" as required in the Constitution, but for unpopular rulings; (4) unconscionable delays of judicial confirmations; and (5) proposals to amend the Constitution to require term limits for federal judges.

Clarke's expression of grave concern for the preservation of an independent judiciary was prompted most acutely by last week's flagrant Congressional rush to judgment in the Oklahoma City bombing trials. With breakneck speed and without any public hearings, legislators dissatisfied with U.S. District Judge Richard Matsch's ruling that persons desiring to give "victim impact" statements at the close of the upcoming trials of Timothy McVeigh and Terry Nichols should be sequestered, like other witnesses, to prevent their testimony from being influenced by the presentation of evidence during the trial. Judge Matsch concluded that the risk was simply too great that, if allowed to observe the trial proceedings, these witnesses would wind up giving impermissible trial process impact statements instead of crime-impact statements. His ruling was upheld by the U.S. Court of Appeals for the 10th Circuit on expedited appeal, despite an amicus brief signed by a number of members of Congress urging reversal. Distrustful of the judicial process, they then crafted their very own legislative reversal of the ruling in the midst of a pending criminal proceeding and rammed it through Congress in what Clarke termed a "rush to judgment."

"This special legislation is nothing less than an attempt by an activist Congress . . . to overrule a federal trial judge's ruling which certain members of Congress deem politically incorrect," Clarke's letter states. "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."

The letter also criticizes Congressional interference with the judicial branch by threats of impeachment, unconscionable and unreasonable delays in confirmations, and unwise and pernicious Constitutional amendments.

House Majority Whip Tom DeLay (R-TX) told reporters recently that "articles of impeachment are being written right now" against "activist" federal judges who have made rulings with which the Republicans disagree. Clarke notes recent events in which some congressmen apparently feel that when they cannot legislate, they will intimidate, adding "This kind of posturing only undermines the independence of the judiciary." In her letter to the Chief Justice, Clarke observed that one of the judges being threatened with impeachment, U.S. District Judge Harold Baer, Jr., of New York, was pressured by leaders in both houses of Congress and both major party presidential candidates into reversing a ruling last year suppressing evidence in a drug case.

Regarding delays in the confirmation of judicial nominees, Clarke quotes Senator Orrin G. Hatch, one of the Senate's staunchest conservatives, complaining that the way some of his fellow Republicans are "playing politics with judges" makes him "sick."

Hatch expressed his exasperation on the Senate Floor just last week during debate narrowly approving the first nominee of President Bill Clinton to a federal court of appeals judgeship since January 1996. Proposals that federal judges be subjected to term limits and periodic re-confirmation would only exacerbate this kind of political meddling with the Third Branch, Clarke said.

"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 erodes citizen confidence in the rule of law," Clarke told Rehnquist.

Because of the depth of the criminal defense bar's concerns over Congressional interference with an independent judiciary, Clarke has separately written to the Republican and Democratic leaderships of both the House and the Senate suggesting a constructive dialogue on the subject, sharing with them her letter to the Chief Justice.

A non-partisan, professional bar association, NACDL is the preeminent organization in the United States advancing the mission of the nation's criminal defense lawyers to ensure justice and due process for persons accused of crime. Formed in 1958, NACDL's 9,000 direct members -- and 78 state and local affiliates with another 25,000 members -- include private criminal defense lawyers, public defenders, judges and law professors committed to preserving fairness within America's criminal justice system. 

A copy of the President Clarke's letter to Chief Justice Rehnquist is available by ((clicking here)).

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NACDL Communications Department

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.