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Judging Congress

June 07, 2006

CONGRESS CAN BE PERSNICKETY about its prerogatives, real and imagined. But its reverence for the separation of powers, so flagrantly on display in its continuing snit over the FBI's search of a House member's offices, goes by the wayside when it's Congress trespassing on someone else's turf.

Take the repeated attempts by Congress to micromanage the work of the federal courts. Conservatives have tried without success to strip courts of jurisdiction over hot-button issues such as same-sex marriage and the constitutionality of a federal law against it. More recently, some members have threatened to prohibit the Supreme Court from citing the decisions of foreign courts in its opinions.

Fortunately, a member of the court who might be expected to welcome the last proposal has come out against it. Justice Antonin Scalia recently delivered a lecture on the separation of powers that applies to other misguided initiatives in Congress.

"No one is more opposed to using foreign law than I am," Scalia told a Capitol Hill luncheon last month. "But I'm darned if I think it's up to Congress to direct the Supreme Court how to make its decisions." He asked Congress to "let us make our mistakes, just as we let you make yours."

Congressional dissatisfaction with the judicial branch is old news in Washington. It ranges from complaints voiced by Sen. Arlen Specter (R-Pa.) that the court has questioned Congress' "method of reasoning" to griping by other members of Congress about requests for judicial pay raises. The latest attempt to muscle the courts is a proposal by Sen. Charles E. Grassley (R-Iowa) to create an inspector general for the judiciary who would watchdog judicial ethics at all levels. A similar House bill by Rep. F. James Sensenbrenner Jr. (R-Wis.) would apply only to lower-court judges. The inspector general idea would unnecessarily entangle the legislative branch in the day-to-day supervision of the judiciary.

The Supreme Court is not above criticism, and Congress has the authority to define the jurisdiction of various federal courts, to decide how much money should be appropriated for their operation and even to impeach and remove judges who abuse their public trust. Congress also is free to regulate or even outlaw some of the practices that have given rise to the inspector general idea -- such as the attendance by judges at lavish "seminars" paid for by foundations linked to special-interest groups.

But even in areas in which Congress can set rules for the judicial branch, it's the better part of wisdom for legislators to tread softly. Conservatives in Congress have dismissed that advice when it has come from "good government" groups and liberal lawyers; maybe it will sink in when it comes from their hero, Justice Scalia.

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