07/07/2007 10:33 am ET | Updated May 25, 2011

Now Who's The Activist?

Many things infuriate me about President Bush's commutation of Scooter Libby's sentence, but the hypocrisy is galling. I don't know if this action is worth a congressional investigation given the growing list of critical issues, like war in the Middle East, spying on citizens and compromises in our electoral system, that warrant full-scale hearings, but if the Democrats move forward, here is an aspect they should explore.

Leading the Republican law-and-order contingent, the Bush administration has pushed to toughen punishments and intimidate so-called 'activist' judges who might deviate down from federal sentencing guidelines. In recent years, any lenient punishment has been subject to review. The adage, 'let the punishment fit the crime' was retired. The particulars of a crime, the defendant's degree of culpability, his or her background, contributions to society, legitimate remorse; these things were no longer relevant. Like a computer, the judge should punch in elements of the offense and simply spit out a predetermined sentence.

It was not a good idea to buck this system. In 2002, Minnesota Chief Judge James Rosenbaum, a Reagan appointee, was known as a tough punisher. Then, he had the temerity to testify before the Judiciary Committee about a proposed amendment that, given certain mitigating factors, would allow judges to depart downward from the Guidelines. Shortly after, Republican members insisted that Rosenbaum turn over his records in cases wherein he might have issued 'lighter' sentences. In one of these, a statute called for a ten year minimum sentence. Sentencing guidelines called for a range of 121-151 months. The judge gave the defendant 120 months in prison, saying "I just sentenced you to one month less than the Guidelines (which) were calculated by a computer not satisfied with the fact that 10 years is 120 months. And so we have a ridiculous extra month which I have taken off. Now that represents an illegal departure..." This did not sit well with the Judiciary Committee. Howard Coble (R-N.C.) said that Judge Rosenbaum "imposed illegal sentences in at least two cases" and that the materials sought may "reveal further illegality on his part in sentencing additional criminal defendants." Committee members considered disciplinary action, even impeachment for the good judge. They achieved their goal-- a chilling effect on the entire federal judiciary.

In 2003, Congressman Tom Feeney (R-Fla.) added an amendment to the Amber Alert Bill. When passed, this harsh sentencing provision removed almost all mitigating factors from judicial discretion. One federal judge simply quit in response. Ronald Weich, former counsel to the Senate Judiciary Committee and the Sentencing Commission said "This is a large step toward transforming the U.S. Sentencing Guidelines into one massive mandatory minimum." Even Chief Justice William Rehnquist said this would "seriously impair the ability of courts to impose just and responsible sentences." Importantly, it mandated that the chief justices of each district and the U.S. Attorney General report any downward departure by a judge to the House and Senate Judiciary Committees within a matter of days. John Ashcroft made sure his attorneys complied. The intimidation continued until the Supreme Court ruled in the Booker case that the sentencing guidelines were merely advisory in nature.

Alberto Gonzales reacted to the Supreme Court's decision with a warning. "We risk losing a sentencing system that requires serious sentences for serious offenders and helps prevent disparate sentences for equally serious crimes," he said. He suggested that the legislature should toughen mandatory minimums while allowing the maximum sentence to float. Essentially, the bottom end would be fixed while there would be no limit to the upper range of punishment.

Republican members of Congress have been very quiet about President Bush's commutation. They must not want to revisit the laws and crass intimidation they promulgated to insure that no federal judge could do what the president has done. I would like to hear President Bush explain his stark reversal of administration policy. Maybe he should submit all records reflecting discussions and considerations that justify his downward deviance to Congress. I'm sure Judge Rosenbaum could help him gather the material.