Wall Street Journal - Gary Fields
Lawmakers are taking another crack at reining in the federal courts, this time with a Senate bill that would require federal judges to periodically revisit consent decrees involving state and local governments.
Some legal professionals say the bill, the Federal Consent Decree Fairness Act, erodes judicial power because it sets a specific timetable for reviewing the decrees. They see it as the latest in a series of congressional threats, statements and legislative proposals to limit the power of the courts.
"This is as far as you can go in pushing the judiciary without actually telling the court what to decide," said Paul Rothstein, a Georgetown University law professor.
A consent decree is a formal court order that carries out an agreement between parties in a civil lawsuit; the decree is supervised by the court. Consent decrees have affected matters such as court-ordered busing.
The Senate bill, introduced recently by Tennessee Republican Lamar Alexander and Arkansas Democrat Mark Pryor, would allow state or local officials to file a motion to modify or vacate a consent decree four years after it was issued. It also would allow new state or local officials to seek a review if the government officials who reached the agreement leave office.
Sen. Alexander said yesterday that consent decrees are effective tools when used narrowly but there are too many cases where the decrees become a way to "lock in" policies for decades.
He highlighted several instances where decrees have made it difficult for local officials to run government programs as they see fit. He cited a 1996 decree forcing the Los Angeles Metropolitan Transit Authority to spend 47% of its budget on city buses, shortchanging the rest of the city's transportation needs.
A spokesman for the judge in that decree, Judge Terry Hatter Jr., declined to comment because the decree remains active until 2006. Neither party has asked that it be ended early.
Judges have been a target for Congress this year as Democrats and Republicans jockey for position before a possible fight over Supreme Court nominations. Lawmakers have been arguing for weeks about filibustering Mr. Bush's judicial nominees, and the phrase "activist judges" has entered the congressional lexicon.
House Judiciary Chairman James Sensenbrenner (R., Wis.) has suggested there should be an inspector general overseeing the federal judiciary. He also has introduced a bill that effectively would require mandatory sentences for many drug crimes, removing judges from sentencing.
Others, such as Republican House Majority Leader Tom DeLay, have suggested that activist judges be impeached.