I've written before about the catastrophic effect of mandatory minimum sentencing in conjunction with our maddening War on Drugs. That effect is being expanded further because of the War on Terrorism. Our federal executive and legislative branches are, together, wreaking disastrous damage on our nation, by trying to control and micromanage the judiciary.

On Tuesday, the Judicial Conference of the United States, a group of 27 judges presided over by Chief Justice William H. Rehnquist, voted unanimously to support the repeal of key provisions of a law that severely limits the ability of judges to hand down lighter sentences than those called for by federal sentencing guidelines.

The law is the PROTECT Act... one more example of magnificent acronyms from Congress recently: Promote Reliable Online Transactions to Encourage Commerce and Trade. Obviously, it isn't primarily about sentencing guidelines, but is a typical mishmash of subjects.

There's a new acronym on the political horizon - now circulating in Congress, but not yet introduced, is the VICTORY Act - Vital Interdiction of Criminal Terrorist Organizations Act (yeah, they couldn't come up with a Y). There is also the granddaddy of acronyms, USA PATRIOT Act - Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act.

This spring, the PROTECT Act was signed into law, and contains a provision directing the U.S. Sentencing Commission to amend the U.S. Sentencing Guidelines "to ensure that the incidence of downward departures are substantially reduced."  The Sentencing Commission has 6 months to do that very complex task. Commission members consider it to be a 2-year minimum job.

"Downward departures" are incidents in which federal judges have given sentences more lenient than those prescribed by the sentencing guidelines.

On July 28, Attorney General John Ashcroft issued a memorandum to all federal prosecutors outlining the Department of Justice's policies with respect to downward departures, in light of the PROTECT Act. It states that prosecutors should not "acquiesce" to departures except in rare occurrences. In addition, when a judge imposes a departure over the prosecutor's objections, the memo requires the prosecutor, within 14 days, to report the departure to DOJ.

Congress and the administration have considerable control of the Judicial branch. Supreme Court justices, court of appeals judges, and district court judges are nominated by the President and confirmed by the United States Senate. Court of appeals and district court judgeships are created by legislation that must be enacted by Congress, based on case loads.

Currently, these are the authorized number of judges:
Supreme Court   9
Court of Appeals   179
Regional Courts of Appeals 167  
Federal Circuit  12  
District Court   680

Right now, 53 of those positions are vacant, with 40 nominees pending, and that's where more political manipulation occurs... at the nomination and confirmation level. Being a politician, the President has a strong tendency to appoint judges who may lean toward the aims of his own administration. During confirmation, further political maneuvering ensures that the judicial system will always have vacant positions and case overloads. Recently, opposition filibustering has caused delays in confirmation.

The Judicial branch is clearly under attack by the Executive and Legislative branches... which amounts to a further attack on the Constitution, which was designed to have the three branches each guard against abuses by the others. The Judicial branch is being severely squeezed by the other branches, and the historic "balance of power" is being shredded.

Tomorrow, we'll hear more from the judges.