Washington Times-May 16, 2000
Laying claim to judicial royalty
By Bruce Fein
In a letter dated May 5, 2000, Chief Judge Norma Holloway Johnson of
the U.S. District Court for the District of Columbia boldly snubbed a
request from Rep. Dan Burton, Indiana Republican, chairman of the House
Committee on Government Reform to testify about facial irregularities in
the assignment of cases fraught with potential political liability to the
Clinton administration. According to the chief judge, to descend from her
aerie to appear before an earthbound congressional committee would stain
the judicial independence and royalty that the Constitution aimed to
secure by its separation of powers.
That lofty claim seems thoroughly misconceived. It is one thing to
salute independence of judicial decision-making necessary for both justice
and the appearance of justice. It is quite another to shield judges from
congressional questions concerning the reasons for case assignments
pertinent to its lawmaking and oversight functions. To equate the two
betrays a profound misunderstanding of separation of powers. As James
Madison elaborated in Federalist 47, it contemplates a partial agency or
control among the three branches, and frowns only on the coronation of one
at the expense of another.
Congress, of course, is not empowered to harass a federal judge for
the sake of harassment. But that legitimate worry seems universes away
from the case assignment issue that prompted Mr. Burton's testimonial
request of Chief Judge Johnson.
For long years, Local Rule 403(g) of the Rules of the U.S. District
Court for the District of Columbia authorized the chief judge to bypass
the customary random assignment of cases in favor of special assignments
in protracted or complex criminal cases. The rule sensibly seeks a more
mercury-footed judicial docket through the efficient deployment of
judicial resources. Its invocation is typically sparing, reserved for
trial extravaganzas like the Watergate and Iran-Contra prosecutions. Chief
Judge Johnson had specially assigned cases only twice in the six years
antedating a cluster of Clinton administration criminal embarrassments.
The chief judge then bypassed random assignments in the politically
charged cases of United States vs. Charlie Trie, United States vs. Hsia,
United States vs. Hubbell, United States vs. Glicken, and United States
vs. Kanchanalak. Special assignments were made to judges uniformly
appointed by President William Jefferson Clinton. In the Hubbell income
tax evasion case, the district judge had been both a financial and
political backer of President Clinton in his 1992 campaign.
None of the cases seemed teeming with legal complexities or promising
an extended trial when the special assignments were made, i.e., after the
indictments but before pretrial motions and skirmishing between the
prosecutor and defense counsel. Indeed, in the Glicken case, defense
counsel had represented that his client would plead guilty after the
criminal accusation. And in the Hsia case, the chief judge deviated from
customary practice to ask the Justice Department to plead for a related
assignment.
Furthermore, in a vote of no confidence, a collective decision of the
United States District Judges for the District of Columbia last February
revoked the special assignment power of the Chief Judge; the revocation
was followed by the appointment of a special committee two months later by
Acting Chief Judge Stephen Williams of the U.S. Court of Appeals for the
District of Columbia Circuit to investigate the facts and allegations
regarding the special assignments.
In sum, Mr. Burton's request for Chief Judge Johnson's testimony was
no fishing expedition. It emerged from volumes of circumstantial evidence
of judicial misconduct or political partiality that might demonstrate a
justification for either an impeachment inquiry, a statute banning special
assignments or requiring judicial explanations for their employment, or a
law broadening the criteria for judicial recusal enumerated in sections
144 and 455 of Title 28 of the United States Code.
The tart May 5 letter to Mr. Burton obtusely suggested that judicial
independence would be endangered if Chief Judge Johnson explained the
apparent irregularities in her special assignments. The hallmark of
judging is the elaboration of reasons for decisions, not arbitrary ukases
characteristic of Russian czars. Asking Chief Judge Johnson to provide
reasons for her special case assignments is unalarming to judicial
independence, akin to a statute mandating written explanations by chief
judges for each departure from a random assignment.
Indeed, Chief Judge Johnson herself has already offered general but
unamplified justifications for her special assignments in a letter to The
Washington Times published last Aug. 4. Her refusal to appear before the
House Committee on Government Reform on the same subject thus smacks of a
defendant testifying on his own behalf but rejecting cross-examination,
which the truth-finding process does not tolerate.
Inquiry into the reasons or motivations of government officials is no
novelty. Legislators routinely testify in racial gerrymandering litigation
regarding the justifications for suspect district boundary lines. Indeed,
evidence that illuminates the purpose of government action is a staple of
equal protection lawsuits.
Chief Judge Johnson's own colleagues have tacitly recognized that her
unexplicated special case assignments have shaken confidence in the
political impartiality of the federal judiciary. Her queenlike rebuff to
Congress that pivots on an anemic constitutional concern only compounds
the problem.
Bruce Fein is a lawyer and free-lance writer specializing in legal
issues.
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