Push Back

I suppose we shouldn’t be surprised that since the Republicans have cancelled all congressional oversight of the executive branch that they are turning their attention to the judiciary. After all, what else do they have to do? K Street writes legislation, the leadership tells them how to vote — they have to flex their egos somewhere.

I thought that the judicial “activism” the wingnuts were so exercised about regarded judges who refuse to change the law to accomodate religious nuts as they try to enforce their sharia on the public. But, apparently not.

Congressman Sensenbrenner of Illinois Wisconsin is involving himself in an obscure drug case by outright telling the federal appeals court to change their opinion:

In an extraordinary move, the chairman of the House Judiciary Committee privately demanded last month that the 7th U.S. Circuit Court of Appeals in Chicago change its decision in a narcotics case because he didn’t believe a drug courier got a harsh enough prison term.

Rep. James Sensenbrenner (R-Wis.), in a five-page letter dated June 23 to Chief Judge Joel Flaum, asserted that a June 16 decision by a three-judge appeals court panel was wrong.

He demanded “a prompt response” as to what steps Flaum would take “to rectify the panel’s actions” in a case where a drug courier in a Chicago police corruption case received a 97-month prison sentence instead of the at least 120 months required by a drug-conspiracy statute.

“Despite the panel’s unambiguous determination that the 97-month sentence was illegal, it appears to … justify the sanctioning of both the illegal sentence and its own failure to [increase the sentence] by stating `[that the panel’s decision] not to take a cross-appeal [ensures] that the [courier’s] sentence cannot be increased.’ The panel cites no authority for this bizarre proposition and I am aware of none,” wrote Sensenbrenner, who cited a 1992 ruling as precedent for his argument that the longer prison term should have been imposed.

[…]

Apperson, who is chief counsel of a House Judiciary subcommittee, argues that Sensenbrenner is simply exercising his judicial oversight responsibilities. But some legal experts believe the action by the Judiciary Committee chairman, who is an attorney, is a violation of House ethics rules, which prohibit communicating privately with judges on legal matters, as well as court rules that bar such contact with judges without contacting all parties.

Further, the letter may be an intrusion on the Constitution’s separation-of-powers doctrine, or, at least, the latest encroachment by Congress upon the judiciary, analysts said.

David Zlotnick, a law professor at Roger Williams University in Rhode Island and an expert on federal sentencing law, said, “I think it’s completely inappropriate for a congressman to send a letter to a court telling them to change a ruling.”

Contrary to court rules, Sensenbrenner’s letter was not sent to Rivera’s appellate attorney, Steve Shobat, who received a copy only after the letter was placed in the official court file.

“To try to influence a pending case is totally inappropriate,” Shobat said. “My client had a very small role in this case, and to think that she is the focus of the head of the House Judiciary Committee? It is intimidating.”

Intimidating to whom? Aside from general right wing dickishness, why do you suppose Sensenbrenner would use a rather low level drug case like this one to challenge the separation of powers?

Naturally, the nut graf comes at the very end of the article. Hold on to your hats:

At sentencing, U.S. District Judge Blanche Manning imposed the 97-month term, citing a 1993 court ruling that allowed that the drug quantity that relates to an individual be taken into account in imposing a sentence less than the minimum required.

At the time, federal prosecutor Brian Netols told Manning, “I think that would be the appropriate sentence.”

Shobat appealed, contending the sentence still was too high. The U.S. attorney’s office did not appeal the sentence as a violation of the 120-month minimum.

The three-judge panel on the case, Frank Easterbrook, Ilana Diamond Rovner and Diane Wood, issued its opinion, written by Easterbrook, stating that the sentence should have been 120 months.

“By deciding not to [challenge the 97-month sentence], the United States has ensured that Rivera’s sentence cannot be increased,” the opinion states.

Apperson said the committee learned of the decision after being contacted the day of the ruling by “a citizen who I assume had seen it on the court’s Web site.”

After Sensenbrenner’s letter was placed in the court file, the three-judge panel issued a revised final paragraph of its decision that added a citation explaining why it was not legal to change Rivera’s sentence and why the precedent cited by Sensenbrenner was wrong.

Sensenbrenner also wrote a letter to Atty. Gen. Alberto Gonzales, demanding that the decision be appealed further and that he investigate why the U.S. attorney’s office in Chicago did not appeal Rivera’s sentence.

Bryan Sierra, a spokesman for the Justice Department, said Sensenbrenner’s letter was being reviewed. Randall Samborn, a spokesman for U.S. Atty. Patrick Fitzgerald, declined to comment.

This is about Patrick Fitzgerald. If he’s got the full force of the GOP machine on his back, let’s hope he believes in the Chicago Way.

Hat tip to sharp commenter Samela

Update: Fitzgerald is an interesting guy. If you haven’t read this WaPo bio, check it out. He sounds like a pretty straight shooter. And a pretty scary prosecutor. I wonder if there is a plan afoot to pull an Archibald Cox. They’ve learned their lesson, though; this time they’d fire him for “cause.”

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