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March 13, 2003
EUGENE VOLOKH points out a troubling story about a Congressional committee subpoenaing the records of federal judge Mike Rosenbaum because it thinks he may have been handing out overly light sentences in drug cases. I think Volokh has it right here:
I'm not up the caselaw related to separation of powers in this context; it might be that this sort of subpoena is constitutionally permissible -- I'm just not sure. But it does strike me as a very bad idea -- a distraction of the judge from his normal duties, and a means of bullying those judges whose legal decisions the Congress dislikes. If Congress wants publicly available records (status of appeals, copies of decisions, and the like), it should get them. If it wants sentencing transcripts, it should pay for them. If it wants private in-chambers information (such as information about whether the clerks helped the judge with his testimony), it has no business demanding it. Either way, the contemplated subpoena seems quite improper.
The allegations of the judge supposedly misleading Congress or of his testimony raising "serious concerns" about the judiciary strike me as unsound. The article doesn't give all the details, but it sounds at most like the Judge expressed his opinions in an inartful way. (I take it that his claim was that some people get heavy sentences even though they're only marginally culpable, or perhaps that he thinks they're probably not culpable but a jury decided otherwise.)
As Volokh says: "Not a good sort of business for Congress to be getting into."
It looks like bullying to me, too. What are they thinking here?